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. * 1863. 





JUKE TERM, 1803. 



The Courts and Judges of the States have concurrent jurisdiction with the 
Courts and Judges of the Confederate States in the issuing of writs of habeas 
corpus, and in the enquiring into the causes of detention, even where such 
detention' is by an officer or agent, of the Confederate States. 

The courts of this State, as well as the individual Judges,, have jurisdiction to 
issue writs of habeas corpus and to have the return made to them in term 
time and, as a court, to consider and determine of the causes of detention. 

A person liable to military service, as a conscript, under the Act of Congress of 
April, 1862, and who, by virtue of the 9th section of the act, regularly 
procured a discharge by furnishing a proper substitute, cannot again be en- 
rolled as a conscript under the act of September, 18G2. 

*Judge Manly was absent during the greater part of the term on account 
of sickness, and did not participate in the consideration of any of the cases of 
habeas corpus decided at this term. 


In the matter of Bryan. 

Bryan, the applicant, petitioned to the Supreme Court, 
at the present term, for a writ of habeas coepds, alleging 
that, being between the ages of eighteen and thirty-five 
. years, he procured a substitute, who was duly received by 
Peter Mallett, then Major in command of the conscript camp, 
near Raleigh, and the chief enrolling officer of the State, and 
that the said Major Peter Mallett, on the 29th day of July, 

1862, gave him a discharge for the war ; that the age of the said 
substitute was thirty-nine years ; that on the 16th day of June, 

1863, he was arrested as a conscript, and was at the date of his 
petition in the custody of Lieut. J. D. PL Young, of Franklin 
county, as a conscript, under the second law for raising con- 
scripts, (September, 1862,) and that the said Lieut. Young is 
about to carry him to Camp Holmes, a rendezvous for con- 
scripts, near the city of Raleigh. The prayer of the petition 
is for a writ of habeas corpus, to enquire into the cause of de- 
tention of the said J. 0. Bryan and for a discharge. The 
Court ordered the writ, which was.accordingly issued by the 
clerk, and was returned with this endorsement: " I accept the 
service of this writ and return for answer: that the facts set 
forth in the petition arc substantially true, and that I arrested 
him by an order of the enrolling officer for 5th congressional 
district. J. D. IT. Young, 

* Lieut. 40th Rcg't. % C. Militia." 

On the return of the writ a day was given in Court for the 
hearing of the case, and as a preliminary to the consideration 
of the facts stated in the petition, the Court requested argu- 
ments from gentlemen present, on the question, whether this 
Court and the other courts of superior jurisdiction and the 
Judges individually of this State, have jurisdiction to issue 
writs 6T habeas corpus, and to consider the causes of detention, 
where the imprisonment or detention was under the authori- 
ty of the Confederate Government. Thereupon, 

Mr. Moore, in support of the jurisdiction, argued asTollows : 
1. The jurisdiction of the States in cases. of habeas corpus, 
is strongly maintained by the Federalist, No. 82. " Its opin- 
ion has always been considered of great authority. It is a com- 

JUNE TEEM, 1863. 

In the matter of Bryan. 

plete commentary on our constitution, and is appealed to by all 
parties in the questions to which the instrument has given 
birth. Its extrinsic merit entitles it to this high rank; and the 
part two of its authors performed in framing the constitution, 
put it very much in their power to explain the views with 
which it was framed. These essays having been published 
while the constitution was before the nation for adoption or 
rejection, and having been written in answer to objections 
founded entirely on the extent of its powers, and on its dimi- 
nution of State sovereignty, are entitled to the more consid- 
eration," &c, per Marshall, Ch. Jus. ; in Cohens v. Virginia, 
6 Wheat, 418. 

2. The judicial annals of the country, for more than half a 
century past, affirm it with a unanimity rarely witnessed on 
any great legal and constitutional question. 

The jurisdiction is settled in New York ; Ferguson 's case, 
9 Johns, 239 ; Stacey's case, 10 ilk 328 ; Carlton's case, 7 
Cow. 471 ; United States v. Wyngali, 5 Hill, 16 ; 1 Kent's 
Com. (8 ed.) 440. In New Hampshire, State v. Dimmick, 12 
N. II. Rep. 197. In Massachusetts, Commonwealth v. Har- 
rison, 11 Mass. Rep. 63 ;' Same v. Vushing, ib. 67 ; Same v. 
Doions, 24 Pick. 227 ; Sim's case, 7 Gush. 285 ; Lewis' case, 
reported in 2 N. 0. Law Repos. 747. In Pennsylvania ; Com- 
monwealth v. Uolloioay, 4 13in. 512 ; Zockingtoti's case, 9 
Brightly, 269 ; Commonwealth v. Fox, 7 Barr, 336. In New 
Jersey ; State v. Brearly, 2 South. 555. In Maryland ; Ex 
Parte Almeida. In Virginia ; Ex Parte Pool, and Pleasants' 
case, Hurd on Hab. Corp. 190 — 1. In North Carolina ; Ex 
Parte Mason, 1 Mur. 336, and note to Shorner's case, report- 
ed in 1 Car. Law Repos. at 5S ; Lewis' case, ante, was doubt- 
less selected and reported in this State by the learned Chief 
Justice Taylor, as containing the judicial opinion of North 
Carolina on this subject. It has been uniformly so regarded 
fey the profession. In South Carolina ; 5 Halls' Law Jour- 
nal, 497 ; 1 Kent's Com. 440, n. c. In Georgia j Hurd on 
Hab. Corp, 168-9. 


In the matter of Bryan. 

In some of the cases, counsel for the United States appear- 
ed in the State courts without opposing their jurisdiction. 

The opinions of State Judges disclaiming jurisdiction are few. 
Chief Justice Kent's in Ferguson's case, the ablest to be found, 
delivered in 1812, was forever surrendered by him in 1813, 
without a struggle, in Stacy's case ; and in 1828, he said in 
his Commentaries, " the question was settled." The error of his 
reasoning is based upon the idea, that the proper- test wheth- 
er a State .court has jurisdiction of any case of habeas corpus 
is, whether it may take jurisdiction of every matter connected 
therewith, however remotely. 

This is not the test. The case of imprisonment is a com- 
plete and independent case of itself. The Supreme Court of 
this State may hear and determine the case of a person arrest- 
ed for homicide, yet it has no jurisdiction over the homicide. 

The of opinions of Judge in South Carolina in 1819, 

cited in Hurd, 189, and that of Judge Nelson of New York, 
a Federal Judge, assert that a State court has no power to 
pronounce an act of Congress unconstitutional — this is the 
lasts of their opinion. 

Judge McLean's opinion, Hurd, 200, presents a case of a 
quasi adjudication, which placed the prisoner beyond the ju- 
risdiction of the State tribunals. 

The doctrine of the State tribunals, in regard to the exer- 
cise of their jurisdiction in cases of restraint of the person un- 
der color of Confederate authority, is this : The writ cannot 
be used by them to defeat the exercise of a jurisdiction al- 
ready begun by a Confederate Court or a judicial officer and 
still pending : or to exercise a collective jurisdiction over any 
Confederate Court or judicial officer. 

It is the same as it is, generally, in the State tribunals- 
among themselves, where a Judge or a State Court is called 
on to hear the case of one imprisoned or arrested under color 
of another State judicial authority — the same as in England, 
1 Chit. Cr. L. 104-5. The true line is laid down in Ex parte 
JPool, ante, and well illustrated by the cases cited in Hurd 
335, et seq. The rule is well established, and there is little 

JUNE TERM, 1863. 

In the matter of Bryan. 

danger of a conflict ; not so much, by far, as there is between 
the opinions of the District Confederate Judges of the several 
States, while there is no Supreme Court to settle the law. 

The case of Ahleman v. Booth, 21 How. 506, is correctly 
decided. The facts, which are particularly stated by Chief 
Justice Tane3 r , present the two propositions so clearly an- 
nounced by him on p. 514 and 515. Both of these proposi- 
tions are disposed of by the Chief Justice in precise accord- 
ance with the rule before stated. They find no support in the 
practice of a single State, which before that time had under- 
taken to exercise concurrent jurisdiction. They are announc- 
ed by the Chief Justice p. 514, to be " new in the jurispru- 
dence of the United States, as well as of the States." 

It cannot be supposed that the Court, without any necessi- 
ty for it, intended, without ceremony, to throw down and tread 
with silent contempt on the decisions of the able Judges of 
ten States, made and repeated through a period of fifty years. 

If the opinion is properly interpreted in the construction 
contended for by the Secretary at War, it is a mighty on- 
slaught on those reserved judicial rights of the States so ably 
maintained and defended by that very eminent jurist and 
statesman, the author of No. 82 of the Federalist ; and strikes 
a no less blow on the eminent Chief Justice Marshall, who 
has bestowed on it his immortal praise. 

Every recent alteration of the Federal constitution by the 
Confederate States, is made with a purpose to contract the 
powers of the general government and enlarge those of the 
States ; and many alterations of the laws are significant of 
the same purpose. The extensions of the writ of habeas corpus 
by the acts of Congress of March 2, 1832, and Aug. 29, 1842, 
the former made in the nullification times to reach the cases 
of such as might be confined by State tribunals while obeying 
the laws of Congress, and the latter, to meet such cases as 
McLeod's, which occurred in ISTew York, are wholly omitted 
in the judiciary act of March 16, 1861. It is conceded that a 
State court may issue the writ for every prisoner ; but it is 
contended that if upon the return, it appear the prisoner is 


In the matter of Bryan. 

confined under color of an alleged act of Congress, he must 
be remanded. How is the act to be made appear? It is an- 
swered, all public acts are judicially known. Suppose the. 
Court is satisfied that there is no such act ? It is answered 
that, of course, the prisoner must be discharged. Suppose 
the Court are satisfied that the act, though not by express 
words, yet by clear implication, is repealed ? The same judi- 
cial knowledge of the nullity of the act exists, and here, again, 
the prisoner must be discharged. But suppose, in the opin- 
ion of the Judge, the act is manifestly unconstitutional, can 
there be any difference in the judicial mind between a repeal- 
ed act and an unconstitutional act ? Suppose an act passed to 
authorise the Secretary at War, " without warrant or proba- 
ble cause supported b} 7 affidavit," to have arrested all civil- 
ians whom he might suspect of disloyalty, and a prisoner thus 
arrested should be brought up by habeas corpus before a State 
tribunal, it is conceded, that if the Court cannot look at the 
act, he must be discharged under the constitution : And it is 
further conceded, that the act is unconstitutional and void in 
law, yet, it is contended that the Court cannot see the consti- 
tution, and can only see the act; and for the time the func- 
tions of the Court, sworn to support the constitution and only 
such laws as are " made pursuant thereto," are to be utterly 
suspended, attended by the consequent absurdity, that in the 
most trifling of all causes, the Court must regard, and in the 
greatest of all causes, it must disregard the supreme law of 
the land. In the former the true law, and in the latter, the 7 
false law is to be administered. 

A doctrine which allows a court to perceive, judicially, 
that one valid act of legislation is annulled by another and 
subsequent one, and yet forbids the same court to judicially 
see that an act of temporary legislation is annulled by an an- 
terior, unrepealable and inconsistent law, does not belong to 
the science of law. 

The State courts have not adopted the construction insisted 
on, but still maintain a concurrent jurisdiction in this and 
similar cases. In Isaacs v. Claiborne, decided in March last, 

JUNE TEEM, 1863. 

In the matter of Bryan. 

by Judge Lyons, of Virginia, he enjoined the defendant from 
impressing private property for the government under orders 
from the Secretary at "War, and was not deterred from exer- 
cising jurisdiction, by objections tending to place the case be- 
yond the State courts. The powers claimed by the officers, 
he tested by the Confederate Constitution, the law of emi- 
nent domain in the government, and the emergency of the 
occasion ; and of all. of them he judged himself. Certainly 
the Confederate Judge would have had jurisdiction of this 
case also, the wrong being done by high officers of that gov- 
ernment, under color of Confederate authority. 

No time could be less fortunate than now to overthrow the 
guards of personal liberty. No time less auspicious, for the 
honest fame of a high judicial tribunal, to listen to the se- 
ductions or menaces of power. 

A denial of jurisdiction to the States, is little short of an 
abrogation of the "great palladium of personal liberty." 

In all the past exertions to concentrate power, none have 
been so dangerous to liberty, and all of them together could 
not so humble the dignity and sovereignty of the States. 

Mr. Strong, District Attorney of the Confederate States, 
with whom was' Mr. Bragg, contra, argued as follows : 

The true question is, has a State Court the right, by Writ of 
Habeas Corpus, or otherwise, to interfere with and thwart 
officers of the Confederate States, acting in the exercise of 
authority under a law of that government? The right is de- 
nied as incompatible with the general powers granted by the 
constitution to that government, which government would 
become inefficient in its action, and soon fall into contempt, 
were the right generally exercised. v 

In Fergusons case, 9th John's. Rep. page 239, this view is 
ably sustained by Judge Kent. He says, " the present case 
being one of enlistment under color of authority of the Uni- 
ted States, and by an officer of that government, the Federal 
courts have complete and perfect jurisdiction in the case ; and 
there is no need of the jurisdiction or interference of the State 
courts ; nor does it appear to me to be fit that the State courts 


In the matter of Bryan. 

should be enquiring into the abuse of the authority of the 
general government. Nevertheless, cases may be supposed 
of the abuse of power by the officers of the government of 
the United States, but the courts of the United States have 
competent authority to correct all such abuses, and they are 
bound to exercise it. * * * "We have no reason to doubt 
of their readiness, as well as ability to correct and punish 
every abuse of power under that government. * * * 
My conclusion is that for the Court to interpose in this case 
would be to exercise power without any jurisdiction." Judge 
Kent never changed this opinion. In Stacy's case. 10th John's. 
328, he yields to his associates, and in his commentaries an- 
nounces a fact simply, when he says, " the question is settled." 

Mr. Moore contended that this reasoning failed in its appli- 
cation to the Confederate government, and argued that the 
judiciary act of the United States gave to the Federal Judges 
jurisdiction by habeas corpus in cases of confinement, under 
color of authority of the U. States, as well as by by virtue 
of iliat authority ; whereas, the Confederate Judges have 
jurisdiction only in cases of restraint, by virtue of the Con- 
federate authority, Judiciary Act of the Confederate States, 
sec. 16 : that " color of authority" was a cloak for no author- 
ity, and "virtue of authority" was valid, legal authority; 
that, therefore, the State Courts must have jurisdiction in the 
former case, or the citizen be without remedy, as the Confed- 
erate Courts have jurisdiction only in the latter case, that is, 
only in the case where the applicant can derive no possible 
benefit from the writ, and must be remanded of course. Egre- 
gious fallacy ! 

Judge Cheves of South Carolina, in a learned opinion 
published in the 12th vol. of Niles' Regiter, declined to 
take jurisdiction over the matter of the discharge of one 
imprisoned under process issued by authority of the Uni- 
ted States, and the Recorder at Charleston lias refused to in- 
terfere with the detention in the army of an infant only sixteen 
years old, maintaining that the decision of Judge Cheves has 
since been acquiesced in as a correct exposition of the law in 

JUNE TERM, 1863. 

In the matter of Bryan. 

South Carolina. Bx parte Rhodes 12, ISTiles' Register 264. 
In He Benj. Sauls, Charleston Courier, Oct. 20, 1862. 

The opinion of Judge Kent has been uniformly sustained 
by the Judges of the Federal courts. In re Veremaitre, Am. 
Law Journal, 438, the Court said : '" a State Court has no ju- 
risdiction on habeas corpus to discharge a soldier or sailor held 
under law of the United States." The case of Norris v. 
Newton, 5 McLean, 99, is to the same effect as is also Judge 
Nelson's charge to the grand jury of the circuit court for the 
Southern District of 2sTew York, quoted in Hurd on Habeas 
Corpus, pp. 198 and, 9. In the case of Ableman v. Booth, 
21st Howard's Rep. 506, Ch. Jus. Taney in delivering the 
unanimous opinion of the Court, said : " The powers of the 
General Government, and of the Slate, although both exist, 
and are exercised within the same territorial limits, are yet 
separate and distinct sovereignties, acting separately and in- 
dependently of each other, within their respective spheres. — 
And the sphere of action appropriated to the United States 
is as far be # yond the reach of the judicial process issued by a 
State judge or State court, as if the line of division were 
traced by land-marks and monuments visible to the naked 
eye. And the State of Wisconsin has no more power to au- 
thorize these proceedings of its judges and Courts than it 
would have had if the prisoner had been confined in Michi- 
gan, or in any other State of the Union, for an offence against 
the laws of the State in which, he was imprisoned." " We do 
not question the authority of the State court or judge to issue 
the writ of habeas corpus, provided it does not appear, when 
the application is made, that the person imprisoned, is in 
custody under the authority of the United States. And, it is 
the duty of the person having the custody of the prisoner, t,o 
make known to the judge or court, by a proper return, the 
authority by which he holds him. But, after the return is 
made, they can proceed no further. The prisoner is then 
within the dominion and exclusive jurisdiction of another 
government. If he has committed an offence against their 
laws, their tribunals alone can punish him. If he is wrong- 


In the matter of Bryan. 

fully imprisoned, their judicial tribunals can release him, and 
afford him redress. No State judge or court, after it is judi- 
cially informed that the party is imprisoned under the au- 
thority of the United States, has any right to interfere with 
him, or to require him to be brought before it. And if the 
authority of a State should attempt to control the principal 
or other authorized officer or agent of the United States, in 
the custody of his prisoner, it would be his duty to .resist it. 
No judicial process can have any lawful authority outside of 
the limits of the jurisdiction of the Judge or court by whom 
it is issued ; and an attempt to enforce if beyond these bound- 
aries, is nothing less than lawless violence." 

It is contended, that inasmuch as Booth was confined un- 
der the order of a court, the case is no authority, for the posi- 
tion assumed, and that the above quoted language is a mere 
dictum. But, if it bo true, that it is the duty of the State 
to protect its citizens against wrong from cm outside hostile 
government, which is the very basis upon which the argument 
proceeded, what peculiar sanctity is there in & judicial wrong, 
that it should not be relieved against? A citizen of North 
Carolina is grievously wronged by what is known to be the 
corrupt decision of a servile Confederate court ; he comes 
'to his protecting sovereign for relief; would he not feel it a 
mockery to be told that as the wrong was perpetrated by a 
court, he must submit ! The true principle in the case is, that 
a clash of Confederate and State authority should be avoid- 
ed, if of the authority of the judicial power; how much more', 
of the executive and legislative, which wield the purse and 
sword ! 

I am fortified in taking this view by that very distinguish- 
ed jurist, Judge Campbell, now Assistant Secretary of War, 
and by the able opinion of Chief Justice "Walker, in fhe ease 
Hill, recently decided by the Supreme Court of Alabama. 
To that opinion the attention of the Courtis specially invited. 
The facts were, a party claiming exemption from military ser- 
vice by reason of physical infirmity, applied to the Probate 
Court for a writ of habeas corpus^ which was granted. Hill, 

JUNE -TERM, 1863. 11 

In the matter of Bryan. 

the officer, who obtained the petition, applied to the Supreme 
Court for a writ of prohibition, on the ground that the Pro- 
bate Court had no jurisdiction, which was granted. The 
Chief Justice, by a careful review of the Acts of Conscrip- 
tion, and the regulations founded on them, established the 
proposition, that it was the duty of the enrolling officer, upon 
hearing evidence, and considering the law, to decide in a 
Nonjudicial manner, upon the status of every citizen as to 
his liability to military service, and to act upon that decision ; 
and after an elaborate review of the authorities, concluded 
that "the case was without the jurisdiction of the Probate 
Judge," and that the general rule that the State Courts have 
concurrent jurisdiction with the Confederate Courts is "sub- 
ject to the exception of those cases in which the execution of 
the laws of the Confederate States by its officers, is to be su- 
pervised and controlled." In support of this conclusion, the 
case of Slocumb v. Mayberry, 2 Wheat 1; cited by the oppos- 
ing counsel, is a direct authority. An act of Congress made 
it the duty of collectors of ports to seize and detain ves- 
sels when suspected of an intention to violate the embargo act of 
April, 1808, 2nd Statutes at large, 499. M other words, the 
collector was " to decide in a quasi judicial manner upon the 
status of every vessel, as to its liability to" seizure and deten- 
tion under the law, and to act upon that decision. The Su- 
preme Court of the United States decided that an action of 
replevin would lie for the cargo!, because there was no law 
authorizing the seizures of cargoes, but that it would not lie 
for the vessel. All admit that this is a case in point, because, 
as by the action of replevin, the property is taken from the 
hands of the officer, so by the writ of habeas corpus is the 
body of the prisoner. But there is a wide difference in its 

The counsel cited the case of Isaacs v. Claiborne, "decided 
in March last by Judge Lyons of Yirginia, who enjoined the 
defendant from impressing private property for the govern- 
ment, under orders from the Secretary of War." The case is 
not in point. This case would be, if under the recent act of Con- 


In the matter of Bryan. 

gress, regulating impressments, the proper officer having de- 
cided that certain stores were necessary for the array, and, in 
accordance with that decision, having seized them, a State 
Court should undertake to take them from' 7iim, by a writ of 
r&plevin,or otherwise. Who will insist upon such a jurisdic- 
tion ? If the officftr should act corruptly or oppressively, he 
would be liable in the State courts in damages to the party 
grieved; but his action could not be controlled — he could not 
be deprived of the stores. Otherwise, the array might be left 
to starve. 

It is believed, that if this power be conceded to the States, 
it will be impossible for Congress to suspend the privilege of 
the writ of habeas corpus/ and, to the legal eye, its suspen- 
sion is as necessary under some circumstances, as its exercise 
is under- others. ' 

Article 1, sec. 9, clause 3, of the constitution declares — 
" the privilege of the writ of habeas corpus shall not be sus- 
pended, unless when in case of rebellion or invasion, the pub- 
lic safety may require it." What writ? The State writ? It 
surely can not be contended that Congress has the power to 
suspend the writ which the father uses for the recovery of his 
child, the master of his apprentice, the husband of his. wife, 
or the party improperly refused bail under State process, of 
his liberty. What writ then is it? It is that, and that only 
which pertains to the courts of that government which that 
constitution has established. On this point, the authorities 
are full. Hurd, p. 133, says, "it is a settled rule of construc- 
tion of that instrument, that the limitations of power con- 
tained in it, when they are expressed in general terms, apply 
only to the government created by it. And although this 
clause has not been the subject of express adjudication, there 
is no doubt that its construction is governed by this rule, and, 
consequently, the restriction does not extend to the States." For 
this he cites, among many other cases, Barron v. The Mayor 
and City of Baltimore, 7 Peters 243, in which the subject is 
fully discussed, and the above conclusion arrived at by Chief 
Justice Marshall, in delivering the opinion of the Court.- — 

JUNE TEftM, 1863. 

In the matter of Bryan. 

Now, if the courts of the States can issue writs of habeas 
corpus, in all cases where parties are detained under Confed- 
erate authority, and if Congress cannot suspend, those writs, 
is not the right of Congress, which is recognised in the above 
clause of the constitution, nullified? Why suspend the priv- 
ilege of the writ as exercised through a Confederate Judge, 
when, in the very same case, it may be exercised through all 
State Judges, which, in this State, number eleven ? 

The converse of the proposition laid down in the beginning 
is generally true, and the boundary lines between the juris- 
diction of the State and General Governments, has been well 
observed upon the part of the latter ; see Kent, vol. 1, p. 411 y 
Hurdl54; Judiciary Act Confederate States, sec. 16; Car- 
ryl v. Taylor, 20th Howard. 

There can be no necessity for the exercise of this power on 
the part of the States. The Confederate government is a free 
government, with the disposition and the power to protect its- 
citizens against all oppression coming from its own officers. — 
It was framed, as its preamble declares, " to secure the bless- 
ings of liberty to ourselves and our posterity." It is the de- 
velopment and personification of the most exalted idea of 
freedom. So far from its being the duty of the States to 
guard against oppression from the Confederate government, 
it is the duty of the Confederate government to guard against 
oppression on the part of the States. Article 4, sec. 3, clause 
4 of the constitution declares that "the Confederate States 
shall guaranty to every State that now is, or hereafter may, 
become a member of this Confederacy, a republican form of 
government." The courts of this free government are open 
to every one. To them let him who is oppressed under color 
of its authority apply, doubting nothing, but that he will find 
relief. Let not the absurdity be adopted, that it is the duty 
of the State to protect the freedom of the citizen from inva- 
sion by a government, which is not only itself free, but the 
design of whose creation, was to preserve freedom. 

There is a most palpable fallacy underlying that portion of 
the argument of Mr. Moore, which contends that the doctrine' 


In the matter of Bryan. 

contended for by the government would lead to the absurdity 
" that in the most trifling of all causes the Court must regard, 
and in the greatest of all causes, it must disregard the su- 
preme law of the land. In the former, the true law, and in 
the latter the false law, is to be administered." The fallacy 
lies in supposing that the false law is to be administered or 
passed upon at all by the State court. It is not so to he admin- 
istered. And although were it to be administered, there would 
certainly be "no difference to the judicial mind, between a re- 
pealed act and an unconstitutional act," yet, it may very well 
be that in the one case the court may have jurisdiction of the 
question, and, in the o titer, not. It might require less ability 
to decide upon the repeal than upon the constitutionality of 
an act. The court sees both questions in order to decide up- 
on its jurisdiction — a power which all courts must exercise ex 
necessitate. So it is well argued that the illogical conclusion 
which the counsel arrived at, by his own false reasoning, " does 
not belong to the science of law." 

It is no valid argument in favor of the right of the State - 
courts, that Congress, having failed to establish a Supreme 
Court, there could be no uniform rule of decision among the 
District Judges. The failure by Congress to exercise a pow- 
er, which it ought to have exercised, can give- no right to this 
Court to exercise a power which it does not possess. It is 
true, in matters of constitutional law, as of ordinary morals, 
"that two wrongs cannot make a rig! it." Besides, we are 
acting for posterity, and it is better to suffer a temporary in- 
convenience, however great, than to break down the bul- 
warks of the Constitution. 

The old Union was destroyed, not by the encroachments of 
the General Government upon the rights of the State, but by 
the encroachments of the fanatical States of the north and 
northwest upon the Constitution, especially that portion which 
guaranteed to the Southern States certain rights, greatly 
valued by them. These encroachments took the shape of 
i( personal liberty bills," and interference of the courts by vJrits 
^f habeas corpus with the proper jurisdiction of the General 

JfJNE TEEM, 1863. 15 

In the matter of Bryan. 

Government. Let us avoid the bad "example. Let us also 
remember in the forcible language of Judge Stone, in his 
opinion in the matter of Hill, uhi supra, that " the States have 
become constitutional, instead of absolute sovereignties, and 
that this no more destroys State sovereignty, than does 
the surrender of certain attributes'of natural liberty, destroy 
civil liberty." 

The following point was not made in the discussion, it not 
having at the time, suggested' itself. The exercise of the ju- 
risdiction contended for, would, in many cases, be impracti- 
cable. Suppose the Confederate officer should refuse to obey 
the. writ, or having obeyed it, and the prisoner having been 
discharged, lie should again arrest him, and the officer should 
be attached for the contempt in the one case, or should be 
arrested under a States-warrant in pursuance of our statute in 
the other, and in either case, the Confederate government 
should avow the acts of its officer, and assume their responsi- 
bility, the proceeding against the officer would at once 
come to an end, according to the principle in McLeodPs case, 
and ill the case of llruen v. Denman, 2d Exchequer Rep. 
176. ^ ^ 

Mr. P. 77. Winston, Sen'r., in support of the jurisdiction, 
argued as follows : 

By 2nd section of 3rd article of the Constitution of the Uni- 
ted States, it is provided that the "judicial power «shall ex- 
tend to all cases in law and equity arising under this Consti- 
tution, the laws of the United States and treaties made un- 
der their authority." The 25th section of the Judiciary Act 
of the United States, provides for appeals and writs of error 
from State courts in cases falling within this grant of power; 
thus recognising the rule that an affirmative grant of jurisdic- 
tion does not give exclusive jurisdiction. The case of Hous- 
ton v. Moore, 5 Wheat. 1, is a decision that an act of Con- 
gress giving jurisdiction simply to courts of United States of 
a class of offences, does not exclude State courts from exer- 
cising jurisdiction under State laws over the same class of 
offences. And this doctrine is explained and illustrated by 


In the matter of Bryan. 

Judge Washington in that case,' and by Judge Story in Martin 
v. Hunter's lessee, 1 Wheat. 336-7 and 340. This rule is re- 
cognized and enforced by the Judiciary Act of the Confeder-. 
ate States. Our Constitution declares that "in all cases af- 
fecting ambassadors, or other public ministers and consuls, and 
those in which a State shall be a party, the Supreme Court 
shall have original jurisdiction ; yet, that act gives exclusive 
jurisdiction to that Court in cases against ambassadors, &c. y . 
and in others affecting them, jurisdiction concurrent with 
other courts. So, of cases in which a State shall be a party.. 

The courts of this State have exercised the power of reliev- 
ing persons unlawfully detained by officers of the United 
States under color of authority derived from them ; Ex parte 
Mason, 1 Mur. 336, and it is believed that the profession have 
never doubted the propriety of its exercise. Slocumb v. May- 
berry % 2 Wheat. 1, is decesive of the question. If goods will 
be taken from a federal officer's custody by process from a. 
State Court, because he detained them wrongfully, though by 
color of an act of Congress, a fortiori, will a habeas corpus 
lie to deliver a man from false imprisonment. 

The exclusive jurisdiction, of the Confederate Courts in 
criminal cases, is not invaded; for enquiry into the lawful- 
ness of imprisonment by habeas corpus, is not an exercise of 
criminal jurisdiction ; Ex parte Bollman and Swartioout, 
4 Cranch," 100. Accordingly, the Supreme Court of the Uni- 
ted States refused writs of habeas corpus in ex parte Kearney, 
7 Wheat. 38, and Ex parte Watkins, 3 Peters, 193, because 
the object of the petitioners was to review the judgments in 
criminal cases; and, though the court of common pleas grants 
the writ, it posseses no cognizance of criminal cases ; Bush- 
eVs case, Vaughan; Wood's case, 3 Wilson, 1172. 

The claim to exclusive jurisdiction for the Confederate 
Courts, is more emphatically groundless, because their judi- 
cial power in respect of the chief purposes for which it was 
given, isin abeyance. These purposes are to secure the uniform 
administration of the laws, correspondent to their uniform 
enactment ; to avoid affording causes of quarrel to foreign na- 

JUNE TERM, 1863. 17 

In the matter of Bryan. 

tions, by making effectual provision for the impartial and en- 
lightened administration of national law, and to protect the 
persons and property of our own citizens against violations of 
the constitution of a State or the Confederate States. It is. 
manifest that all these purposes are frustrated by the neglect 
of Congress to appoint Judges of the Supreme Court ;,, although 
that Court exists, it having been established by the Constitu- 
tution, it cannot perform its functions any more than if it 
were not in existence. The appellate jurisdiction is an essen- 
tial part of the judicial power, and; the latter is practi- 
cally non-existent as long as there are no means^ provided for 
exercising the latter. Congress has shown its sense of this 
truth, by providing for writs of error and: appeals from the 
District Courts to the Supreme Court. 

The case lately decided by the Supreme Court of Alabama, 
does not affect the question here. The decision is probably 
right. The Judges differ in. their reasons. Judge Stone 
seems to admit the jurisdiction of State courts in such cases as 
this. Chief Justice Walker's reasons for his opinion, are clear- 
ly insufficient. The passage he cites from- Kent's Commenta- 
ries, at page 400, of the 1st Vol., says, that it is settled 
that State courts have a concurrent jurisdiction with the Fed- 
eral Courts in granting writs of 'habeas ooiyus. 

The decisions of enrolling officers, commandants of conscript 
camps, &c, on the liability to military service, cannot be judi- 
cial acts ; they can be done only by Judges,., and, the Consti- 
tution declares that the Judges both of the Supreme and in- 
ferior Courts shall hold their offices during good behaviour; 
Article 3, section 1. Besides, if that were so, every man is 
liable to be imprisoned perpetually or indefinitely by the sen- 
tence of a military officer, without any right to have the 
cause of imprisonment enquired into by any court whatever ; 
for the Supreme Court has no Judges, and the District Courts 
have no appellate jurisdiction. 

Neither do the cases of Ableman v. Booth, and United 
States v. Booth, 20 Howard, 506, have any bearing upon this 
case. They constitute but. one case : for the reversal of the 



fc In the matter of Bryan. 

order of the State court, with respect to the last named case, 
disposed of the whole subject. There is no likeness between a 
State court attempting to use the writ of habeas corpus as. an 
instrument for annulling a judgment of the Circuit Court of the 
United States, in a matter of crime against the United States 
and the case before this Court — the use of the writ for the pur- 
pose of delivering from unlawful imprisonment a citizen de- 
tained by a Confederate State's officer by color, but not by vir- 
tue of authority of an act of Congress. 

— - v. Booth, has no likeness to this case. The peti- 
tioner was in custody of the Marshall by virtue, not by color 
of judicial process. Neither do any of Chief Justice Taney's 
remarks, in giving judgment, bear on this case. They are to 
the same effect as those of Chief Justice Marshall in Slocumb v. 
Mayberry, to w T it : the State courts have no authority to take 
either a man or goods out of the custody of an officer of the 
United States detaining him or them under the authority 
given by the laws of the United States, and not merely by 
color of such authority. 

Pearson, C. J. Governor Yance having informed the 
Judges that the Secretary of War puts his objection to the 
release of citizens who have been arrested as conscripts by 
the officers of the Confederate States after they had been dis- 
charged by the State tribunals on writs of habeas corpus, up- 
on the ground that the courts of the State had no jurisdiction 
over the subject; the Court directed the question to be argu- 
ed as preliminary to the disposition of the many applications 
before it by writs of habeas corpus, and assigned a day. As 
the organ of the Court, I addressed a communication to His 
Excellency the President of the Confederate States, informing 
him of the fact, and that the Court would be pleased to hear 
an argument by the Attorney General of the Confederate 
States or any other gentleman of the bar he might appoint 
for the purpose. The question has been fully argued by Mr. 
Moore and Mr. Winston in support of the jurisdiction, and by 

JUNE TEftM, 1863. 19 

In the matter of Bryan. * 

Mr. Strong, District Attorney of the Confederate States, with 
whom was associated Mr. Bragg, against the jurisdiction. 

We have devoted to the subject that temperate and mature 
deliberation which its great importance called for, and the 
Court is of opinion that it has jurisdiction and is bound to ex- 
ercise it, and to discharge the citizen whenever it appears that 
he is unlawfully restrained of his liberty by an officer of the 
Confederate States. If the restraint is lawful, the Court dis- 
misses the application and. remauds the party. If, on the oth- 
er hand, the restraint is unlawful, the Court discharges him. 
The lawfulness or unlawfulness of the restraint necessarily in- 
volves the construction of the act of Congress under which 
the officer justifies the arrest, and the naked question is, by 
whom is the act of Congress to be construed ? by the Secre- 
tary of War and the subordinate officers he appoints in order 
to carry the conscription acts into effect, or by the Judiciary ? 
or if the latter, have the State courts jurisdiction over the 
subject? This, as was well remarked by Mr. Strong, is a dry 
question of Constitutional Law, and its decision should not 
be influenced by collateral disturbing causes. 

The jurisdiction of the State courts over the subject, is set- 
tled in this State, and has been so considered as far back as 
the traditions of the Bar carry us. In 1815, Judge Taylor 
reported in the 2d North Carolina Law Repository, 57, Lew- 
is' case, decided by the Supreme Court of Massachusetts, in 
which the Court, upon a habeas corpus to an officer of the 
United States, took jurisdiction and discharged a soldier on 
the ground that the enlistment was not valid by the pro- 
per construction of the act of Congress. That decision was 
concurred in by the bench and bar in this State, and the ju- 
risdiction has ever since been exercised by our courts and 
Judges, and treated as "settled" until the present term of 
the Court. In Mason's case, the jurisdiction was exercised, 
and a soldier of the United States was discharged by the 
Court; 1st Murphy 336— (1809.) See also North Carolina 
Law Repository, note. We have traditions of other eases 
tried by single Judges, but no reports were made of them.—- 


In the matter of Bryan. 

About 1847, while on the Superior Court Bench, I exercised 
the jurisdiction, and a soldier was brought before me at Smith- 
Tille, on a writ directed to the officer in command at Fort 
Caswell — Capt. Childs, who afterwards so highly distinguish- 
ed himself in Mexico. In the matter of Mills, who claimed 
exemption as a shoemaker during the past winter, in my let- 
ter to Judge Battle and Judge Manly, asking their opinion as 
to the construction of the conscription and exemption acts, all 
three of us took it for granted that the question of jurisdic- 
tion was settled, and in the opinion filed by me in that and 
all of the other cases which have been before me, I set forth 
that the power of the State Judges to put a construction up- 
on the acts of Congress, so far as they involve the rights of 
the citizen, (as distinguished from mere military regulations,) 
is settled, and all of the other Judges in this State, who have 
issued writs of habeas corpus, have so treated it — (Judges 
Battle, French, Heath and Shipp.) 

The question has been considered as settled in the other 
States, and their courts have, in many eases, assumed .and ex- 
ercised the jurisdiction, and it has been conceded by the 
Courts of the United States. Chancellor Kent, 1st vol. 440, 
referring to Stacy's ease, says: "The question was therefore 
settled in favor af a concurrent jurisdiction in that case, and 
there has been a similar decision and practice hj the Courts 
of other States." In the note, many cases are referred to. — 
Hurd, in his treatise on Habeas, Corpus, under title " concur- 
rent jurisdiction," refers to and collates a great many cases- 
which fully support his conclusion : " It may be considered 
settled that State Courts may grant the writ in all cases of il- 
legal confinement under the authority of the United States.' 7 
So, if any question can be settled by authority T the concur- 
rent jurisdiction of the State Courts, must be treated as set- 
tled. It must be presumed that this long series of cases which 
establish the concurrent jurisdiction of the State Courts, and 
their power to put a construction on acts of Congress, when 
necessary to the decision of a case before them, is supported 
by the most clear and satisfactory reasoning, and it would be 

JUNE TERM, 1863. 21 

In the matter of Bryan. 

idle. to attempt to add any thing to what has been said by the 
Many able Judges who have discussed the question. I will 
•content myself by making a few extracts from some of the 
opinions. Tilghman, Chief Justice, in LocldngtorCs case, 
Brightly 's Reports 269, (in 1818,) says : " It is to be observed 
that the authority of the State Judges in eases of habeas cor- 
pus, emanates from the several States, and not from the Uni- 
ted States. In order to destroy their jurisdiction, therefore, 
it is necessary to show, not that the United States have given 
them jurisdiction, but that Congress possesses, and have ex- 
orcised the power of taking away that jurisdiction which the 
States have vested in their own Judges." Southard, J., in 
■State v. Brearly, 2 South. 555, (1819,) says: "It will require 
in mfca great struggle, both of feeling and judgment, before 
I shall be prepared to deny the jurisdiction of the State, and 
say that she has surrendered her independence on questions 
like this, and that her highest judicial tribunal, for such pur- 
poses, is incapable of inquiring into the imprisonment of her 
citizens, no matter how gross or illegal it may be, provided it 
be by the agents of the United States, and under eolor of 
their laws." "Have we lost the jurisdiction because we cannot 
construe and determine the extent and operation of acts of 
Congress? We are often compelled to construe them; they 
are our supreme law, when made in conformity with the con- 
stitution. Is it because the United States is a party! How 
does she become a party on such a question ? Is she a party 
for the purpose of despotism, whenever a man who holds a 
commission from her, shall, without legal authority,; or in vio- 
lation of her own statutes injure, imprison or oppress the citi- 
zen? surely not." In Sloeimib v. Mayherry, 2d Wheat, p. 1, 
(1817,) Sloeumb was surveyor for the port of Newport in Rhode 
Island, and under the directions of the collector had seized 
the "Yenus," lying in that port with a cargo, ostensibly 
bound to .some other port in the United States. Mayberry, 
who was the owner of the cargo, brought an action of replev- 
in in the State court for the restoration of the cargo. Sloeumb 
put his defence on the ground that he was an officer of the 


In the matter of Bryan. 

United States, and the seizure of ,the vessel and cargo was 
authorized by an act of Congress, and denied the jurisdiction 
of the State court. The court took jurisdiction, and decided 
in favor of Mayberry, on the ground that the act of Congress, 
by its proper construction, only authorized the seizure and 
detention of the vessel, and did not embrace the cargo ; con- 
sequently the officer had detained the cargo against law. 
Slocunib carried the ease to the Supreme Court of the United 
States, where it was held that the State court had jurisdiction, 
and had put a proper construction on the act of Congress. 
Marshall, C. J., says ; " Had this action been brought for 
the vsssel, instead of the cargo, the case would have been es- 
sentially different, the detention would have been by virtue 
of an act of Congress, and the jurisdiction of a State court 
could not have been sustained ; but the action being brought 
for the cargo, to detain which the law gave no authority, it 
was triable in the State court." I cite this case, particularly, 
because in the action of replevin, the thing is taken out of the 
possession of the officer, as the person is taken out of the pos- 
session of the officer under a writ of habeas corpus', so, it is< 
directly in point to show that a State court has jurisdiction 
wherever the law gives no authority to detain the person or 
the thing; and, in order to decide that question, the State 
court has power to put a construction on the act of Congress 
under which the officer justifies the imprisonment or deten- 

To oppose this array of authorities and reason, Mr. Strong re- 
lies on two cases: Ableman v. Booth, 21 How. 506, and "H.UV& 
case," recently decided by the Supreme Court of the State of 
Alabama. With the decision in Ableman v. Booth, 21 How- 
ard 506, we entirely concur, and agree with Taney, C. J., that 
it is "a new and unprecedented attempt, made for the first time, 
by a State court," to assume, not merely an exclusive jurisdic- 
tion, but a jurisdiction controlling the District Court of the 
United States. This decision of the Supreme Court of the 
United States, in no wise impugns the concurrent jurisdiction 
of the State courts, which has been settled by the authorities 

JUNE TERM, 1863. 23 

In the matter of Bryan. 

and reasoning to which we have referred. Two cases were 
presented. Booth was arrested raider a warrant of the Com- 
missioner appointed in pursuance to an act of Congress in re- 
spect to fugitive slaves, under a charge of having aided in the 
rescue of a fugitive slave ; and upon examination before the 
commissioner, probable cause being shown, he was commit- 
ted to answer a charge of the United States for a misde- 
meanor, before the District Court, in the State of Wisconsin ; 
he gave bail for his appearance, but was afterwards surrend- 
ered by his bail, and imprisoned by the marshal ; whereup- 
on he obtained a writ of habeas corpus from a judge of the 
State and was discharged. After being discharged, the 
grand jury found a bill of indictment against him in the Dis- 
trict Court, upon which he M^as tried and convicted and sen- 
tenced to pay a fine and be imprisoned. While in prison, 
under sentence, he obtained a writ of habeas corpus from the 
Supreme Court of the State, and was discharged ; whereupon 
the Supreme Court of the United States had the matter 
brought before it on a writ of error, and decided that as 
Booth, in the first case, was legally in custody of the marshal 
on a warrant of commitment to answer a charge for an in- 
dictable offence before the District Court, and in the second 
ease, was in jail under the sentence of the District Court, the 
State court had no jurisdiction by habeas corpus, to take him 
out of the custody of the marshal, or out of jail and 
discharge him. This was the decision in the case, and 
if the language used by the Chief Justice, in delivering 
the opinion, is construed in reference to the facts of the case 
before the court, there is nothing either in the decision or the 
opinion, which denies the concurrent jurisdiction of the State 
courts. It is true the language is susceptible of a wider 
meaning, and may afford room for an inference that the learn- 
ed Chief Justice " goes outside of the record," and expresses an 
opinion against the jurisdiction of the State courts in all ca- 
ses where one is restrained of his liberty by an officer or agent 
of the government of the United States, although the impris- 
onment be unlawful, and is not authorized by the act of Con- 


^ In the matter of Bryan. 

gress under which the officer professes to act; tjut, in our opin- 
ion, such an inference will do great injustice to that able ju- 
rist; he surely could not have intended to put "his obiter dic- 
tum" in opposition to the series of authorities above referred 
to, without making any allusion or reference to them, or any 
attempt to controvert the reasoning upon which they rest. — 
However this 'may be, the decision does not conflict with the 
concurrent jurisdiction of the State Corals, and the obiter dic- 
tum, if it be one, is not entitled to the weight of an authori- 
ty, and must be treated simply as the opinion of an able law- 
yer on a question not presented by the facts before the Court, 
and entitled only to that degree of ^consideration which its 
intrinsic merit will command. 

The same remarks are applicable to the case of Hill and 
■others, recently decided by the Supreme Court of Alabama. 
The petitioners claimed to be entitled to exemption by reason 
■of bodily incapacity, but had not been held unfit for military 
service in the field by a surgeon, under the rule prescribed 
by the Secretary of War, We fully concur in the decision 
•of the case before the Court; indeed, during the last Spring, 
I refused the application of two persons who claimed exemp- 
tions on the ground of being "unfit for military service in the 
field by reason of bodily incapacity," because by the proper 
construction of the exemption act, only those persons are ex- 
■empted, who shall be held "unfit for military service in the 
field, by reason of bodily incapacity under rules to be pre- 
scribed by the Secretary of War;" and, according to these 
rules, it was necessary that the party should be examined by a 
surgeon, or board of surgeons appointed for that purpose, and 
the certificate of the surgeon or board of surgeons, was the 
only evidence of bodily incapacity that could be acted on as 
evidence of the fact ; so, in that case, the parties were not 
unlawfully restrained of their liberty, but were lawfully in 
custody of the officer of the Confederate States, under the au- 
thority of the acts of Congress, according to their proper con- 
struction. Consequently, that decision is not opposed to the 
jurisdiction of the State courts, when by the proper construe- 

JUNE TEEM, 1863. 25 

In the matter of Bryan. 

tioil of the acts of Congress, one who is not liable to conscrip- 
tion, or who is exempt, is restrained of his liberty against law. 
That portion of the opinion, and reasoning of the learned 
Chief Justice, which is not applicable to v the case, made by 
the facts before the Court, has received from us due conside- 

On the argument, this position was taken : Congress 
may authorize the President to suspend the writ of ha- 
beas corpus: this would not appl} 7 to the State tribunals, and 
if the State courts and Judges have power to issue the writ 
when a person is imprisoned by an officer of the Confederate 
State, the suspension of the writ, so far as the tribunals of the 
Confederate States are concerned, would be vain and nugato- 
ry. This reply answers the position : The act of Congress 
would specify the cases in which the writ might be suspend- 
ed, or would, in general terms, authorize the President to sus- 
pend it in all cases where a person shall be imprisoned by or- 
der of the President. And, as the acts of Congress made in 
pursuance of the constitution, are the supreme law of the 
land, it follows that such an act would be as imperative on 
the State courts and Judges, as on the tribunals of the Con- 
federate States. 

This position was also taken : It is admitted that should a 
judicial tribunal of the Confederate States, by its construction 
of an act of Congress, subject a citizen to imprisonment wrong- 
fully, the State courts, having only concurrent jurisdiction, 
could not interfere to prevent the oppression ; and, on what 
ground can they have any more power to prevent oppression 
on the part of the Executive (if we ma} 7 suppose such a 
case) than to prevent oppression on the part of the Con- 
federate judiciary? This reply, we think, is a conclusive 
answer: The judicial tribunals of the Confederate States 
have jurisdiction, consequently, any adjudication of those 
tribunals would fix the construction of the act of Con- 
gress, and the State courts could "not review or reverse its 
decision; whereas, the executive branch of the government 
lias no judicial power, and any construction it might give 


In the matter of Bryan. 

to an act of Congress would be the subject of review, 
either by the State courts or the Confederate courts ; and 
when a citizen is unlawfully deprived of his liberty or proper- 
ty by an executive officer, acting under an erroneous construc- 
tion of an act of Congress, the State courts may give redress, 
as in Slocumb v. Mayberry. sup. 

This further position was taken, and seemed to be mainly 
relied on : By the conscription and exemption acts, Congress 
invests the Secretary of War, and the officers he is authorized 
to appoint in order to carry them into effect, with a quasi ju- 
dicial power, by which the enrolling officers have jurisdiction 
to " hear and determine " all questions which, are necessary 
to be decided in order to ascertain whether a person is liable 
to conscription, or is entitled to exemption, which of course 
includes the power to put a construction on the acts of Con- 
gress. From the decision of the enrolling officer, there is an 
appeal to the commandant of conscripts, and from his decision, 
there is an appeal to the Secretary of "War, and possibly there is 
an appeal to the President. This grant of judicial power is de- 
duced from the several clauses in the acts of Congress, by which 
the Secretary of War is authorized "to make rules and regu- 
lations to carry the acts into effect," and from the nature of- 
the subject, because without exercising judicial power, it would 
be impracticable to execute the conscription acts. This posi- 
tion is not tenable. There are three conclusive objections to 
it : 1st, Congress has no power to make the Secretary of War 
a Judge ; or to authorize him to invest his subordinate offi- 
cers with judicial power, for, as I say in the opinion delivered 
by me, in the matter of Meroney : " It is true, for the pur- 
pose of carrying acts of Congress into effect, the Secretary of 
"Vf ar, in the first place, puts a construction on them, but his 
construction must be subject to the decision of the judiciary, 
otherwise, our form of government is subverted, the constitu- 
tional provision b} 7 which the legislative, executive and judi- 
cial departments of the government are separate and dis- 
tinct, is violated, and there is no check or control over the 
executive." The circumstances growing out of the subject, 

JUNE TERM, 1863. 27 

In the matter of Bryan. 

now under consideration, demonstrate the wisdom of the fra- 
mers of the constitution in adopting the principle by which 
Congress has no authority to exercise judicial power or to 
confer judicial power upon a department of the executive 
branch of the government. The military officers appointed 
to execute the conscription acts are naturally prompted to 
increase the numerical force of the army,, and for this pur- 
pose so to construe the acts as to embrace as many persons as 
possible. For this reason, and as a protection to those citi- 
zens who are not embraced by the conscription acts, the con- 
stitution provides a third branch of the government in which 
is confided the trust of expounding the law and putting a con- 
struction upon the acts of Congress, and it follows that Con- 
gress has no power to ignore the existence of this third branch 
of the government and confer on the executive, powers which 
belong to the judiciary. 

2d. There is no apparent intention of Congress to confer 
judicial power on the Secretary of War, and authorize him 
to establish inferior and superior courts with the right of ap- 
peal to himself. If such had really been the intention, it 
would have been expressed in plain and direct terms, and. the 
simple fact that the Secretary of War is authorized " to pre- 
scribe rules and regulations to carry the acts of Congress into 
effect," which power he would have had almost by necessary 
implication, surely cannot, when considered calmly and unin- 
fluenced by collateral disturbing causes, be considered suffi- 
cient to confer a power on the Secretary of War totally at 
variance with every principle of our government. 

3d. If the Secretary of War and his subordinate officers are 
invested with this judicial power, so as to exclude the juris- 
diction of the State courts, for the very same reason it would 
exclude the jurisdiction of the courts and Judges of the Con- 
federate States. No provision is made by which a case can 
be taken for review before the District Court of the Confede- 
rate States from these military judicial tribunals. Consequent- 
ly, the judicial department of the government, both State and 
Confederate, is set aside and the liberty of the citizen depends 


In the matter of Bryan. 

solely on the action of the war department and its subordi- 
nate officers. Can this be so ? Surely not. 

Our conclusion is, that the Court has jurisdiction to dis- 
charge a citizen by the writ of habeas, corpus, whenever it is 
made, to appear that he is unlawfully restrained of his liberty 
by an officer of the Confederate States; and that when a case 
is made out, the Court is bound to exercise the jurisdiction 
which has been coufided to it " as a sacred trusty and has no 
discretion and no right to be influenced by considerations 
growing out of the condition of our country, but must act 
with a single eye to the due administration of the law, accord- 
ing to the proper construction of the acts of Congress. 

Battle, J. The question presented for the consideration of 
the Court is, whether the courts and Judges, of this State have the 
right to issue writs of habeas corpus for the purpose of inqiring 
into the legality of the detention of persons held in custody, 
bj officers of the Confederate States as conscripts, under cer- 
tain acts of the Confederate Congress. The constitutionality of 
those acts has never been judicially questioned in this State, so 
that the only inquiry is that which I have just stated. My opin- 
ion is decidedly in favor of the jurisdiction of the State courts, 
and I will endeavor to state, briefly, the process of reasoning, 
by which I have been conducted to this conclusion. In the ex- 
position of my argument, it will be more convenient for me 
to show what wereihe power and authoritjr of the courts of 
this State in relation to this matter, while it was a member of 
'the United States government; for no one contends that they 
have less power and authority under the Confederate govern- 

After the American Revolution, North Carolina was a sov- 
ereign and independent State. In virtue of that sovereignty 
and independence, she was invested with many and great 
powers and prerogatives, and had imposed upon her many 
and important duties. Among these duties none was higher 
than that of protecting all her citizens in the full and free en- 
joyment of life, liberty and private property. Fully alive to 

JUNE TERM, 1863. 20 

In the matter of Bryan. 

this duty, she, in the fundamental organization of her govern- 
ment, declared '-that no freeman ought to be taken, impris- 
oned or deprived of his freehold, liberties or privileges, or 
outlawed, or exiled, or in any manner destroyed or deprived 
of hjs life, liberty or property, but by the law of the land." 
Declaration of Eights, sec. 12. And again : "That every 
freeman, restrained of his liberty, is entitled to a remedy to- 
inquire into the la>vfuluess thereof, and to remove the same, 
if unlawful, and that such remedy ought not to be denied or 
delayed." Ibid, sec. 13. ! < To give a practical effect to these 
rights, courts were established and Judges appointed. Had 
the State been powerful enough to continue to exist as an in- 
dependent nation, nothing more would have been wanted to 
secure the protection of her citizens. But, North Carolina, 
for causes not now necessary to be set forth, found it expedi- 
ent to unite with other States similarly situated, for the 
purpose of forming a new and distinct government, and in 
doing so, all these States were compelled to give up a portion 
of their former respective sovereignties, and to invest the- 
newly created government with them. 'Hence,, the adoption 
of the constitution of the United States, in which, after the 
enumeration of all the powers conferred on the General Gov- 
ernment, it is- declared, that "the powers not delegated to the- 
United States by the constitution, nor prohibited by it to the 
States, are reserved to the States respectively, or to the peo- 
ple." See amend'ts to Con. art. 10. This article was indeed 
unnecessary, as the General Government had no powers ex- 
cept what the States had granted to it, either expressly or by 
a necessary implication ; but it w?as, out of abundant caution,, 
very properly adopted. 

We are now to inquire whether the State gave up a,\4tf por- 
tion of that sovereignty, which wasmecessary to be retained for 
the purpose of enabling her to discharge the duty of protect- 
ing the personal liberty of her citizens. 

As the courts and Judges furnish the means through which 
that liberty is to be vindicated, let us see what authority or 
power has been taken from them. Alexander Hamilton, a 


In the matter of Bryan. 

member of the convention which formed the constitution of 
the General Government, and one of its ablest expounders, 
declared in the 82d No. of the Federalist, p. 377: "That the 
States 'will retain all pre-existent authorities, which may not 
be exclusively delegated to the Federal head ; and that this 
exclusive delegation can only exist in one of three cases: 
where an exclusive authority is, in express terms, granted to the 
Union ; or where a particular authority is granted to the Union, 
and the exercise of a like authority is prohibited to the States ; 
or where an authority is granted to the Union, with which a 
similar authority in the States would be utterly incompatible. 
Though these principles may not apply with the same force 
to the judiciary as to the legislative power, yet I am inclined 
to think that they are, in the main, just with respect to the 
former as well as with the latter. And, under this impres- 
sion, I shall lay it down as a rule, that the State. courts will 
retain the jurisdiction they now have, unless it appears to be 
taken away in one of the enumerated modes." Chancellor 
Kent, in the 1st voL of his Com. p. 896, in remarking upon 
the rule as thus stated in the Federalist, says : "A concur- 
rent jurisdiction in the State courts was admitted in all ex- 
cept those enumerated cases ; but this doctrine was only ap- 
plicable to those descriptions of causes of which the State 
courts had previous cognizance, and it was equally evident in 
relation to causes which grew out of the constitution. Con- 
gress, in the course of legislation, might commit the decsion 
of causes arising upon their laws to the Federal courts exclu- 
sively ; but, unless the State courts were expressly excluded, 
by the acts of Congress, they would of course, take concur- 
rent cognizance of the causes to which these acts might give 
birth$ subject to the exceptions which have been stated.'--— • 
Among the causes, of which the State courts had previous 
cognizance, none were more importa»t than those in which 
they claimed the right to inquire, through the means of writs 
of habeas corpus, into the reasons for the imprisonment of 
persons alleged to be illegally restrained of their liberty. A 
.jurisdiction so essential to the great privilege of going where 

JUNE TEEM, 1863. 31 

In the matter of Bryan. 

one may please — a privilege which every citizen of the State 
would wish to enjo\ r as freely as he did the air he breathed — 
the State courts would hardly have parted with, except upon 
the most urgent necessity. As soon, then, as a citizen of the 
State was supposed to be illegally restrained of his liberty by 
an officer of the General Government, under color of a law of 
Congress, we might have expected that the State courts would 
promptly and anxiously inquire whether they had been de- 
prived of their jurisdiction over the matter. They would ask, 
had it been taken away by an exclusive authority, granted in 
express terms to the courts of the Union? 

If, for instance, it were the case of a soldier unlawfully en- 
listed into the army, the answer would be in the negative. 
They would then ask : was it a case where a particular au- 
thority was granted to the courts of the Union, and the exer- 
cise of a like authority prohibited to the courts of the States? 
The answer would be still in the negative. They would then 
ask: was it a case where an authority was granted to the 
courts of the Union, with which a similar authority in the 
courts of the States would be utterly incompatible ? That was 
considered to be a debateable question, and it was debated , 
with great zeal and ability in almost every State of the Union 
for many years. The result was in favor of the jurisdiction 
of the State courts, and was thus announced by Chancellor 
Kent in the 1st Ed. of his Commentaries, and was so publish- 
ed in each successive edition of his work until his death. (See 
1 Kent's Com. 400-401.) 

" In the case of Ferguson, (9 Johns. Rep. 239,) an applica- 
tion was made to the Supreme Court Of ISfew York, for an al- 
lowance of a habeas corpus to bring up the party alleged to 
be detained in custody by an officer of the army of the Uni- 
ted States, on the ground of being an enlisted soldier ; and 
the allegation was that he was an infant and riot duly enlist- 
ed. It was much discussed, whether the State courts had 
concurrent jurisdiction by habeas corpus^ over the question of 
unlawful imprisonment, when that imprisonment was by an 
officer of the United States, by color or under pretext of au- 


' , In the matter of Bryan. 

thority of the United States. The Supreme Court did not de- 
cide the question, and the motion was denied on other grounds,, 
but subsequently in the matter of Stacy, (10 Johns. 328,) the 
same Court exercised jurisdiction in a similar case, by allow- 
ing and enforcing obedience to the writ of habeas corpus. 
The question was, therefore^ settled in favor of a concurrent 
jurisdiction in that case, and there has- been a similar deci- 
sion and practice by the courts of other States." See also 
Hurd on Habeas Corpus, Book 2, chap. 1, sec. 5, where many 
cases are stated, which show the correctness of Chancellor 
Kent's assertion. 

To the cases mentioned by Hurd may be added that of 
Mason, decided in this State, and reported 1 Murph 336. 
The question of the compatibility of the jurisdiction of the 
State courts with that of the courts of the United States, seems 
thus to have been proved conclusively by long experience of 
their harmonious action, and the general acquiescence of the 
country in it. 

But it; has been recently said that this is all a mistake, and 
that the, decision of the Supreme Court of the United States 
in the case of Ablemcm v. Booth, 21 How. 506, is directly 
opposed to the supposition of a concurrent jurisdiction in the 
courts of the State with those' of the Federal government. 
With the decision of that case I entirely concur; and I think 
hat it is clearly shown in the opinion of the Chief Justice of 
his Court, filed in this, case, that the remarks of Ch. Justice 
Taney, in giving the opinion of the Supreme Court of the 
United States, cannot fairly be construed to sustain the doc- 
trine contended for by the supporters of the exclusive juris- 
diction of the federal courts. 

Another case recently decided by, the Supreme Court of 
Alabama has also been invoked to the aid of those who op- 
pose the concurrent jurisdiction of the State courts. The case 
is that of Ex parte Hill, decided at the last January term of 
the Court, and reported and published in pamphlet form by 
Mr. Shepherd, the reporter of the Court, An attentive ex- 
amination of the case will show, that though the decision of 

JUNE TEEM, 1863. 3£ 

In the matter of Bryan. 

the Court is right, it cannot be used as an authority for the 
purpose for which it has been cited. I will premise that the 
Court is composed of three Judges, of whom only the Chief 
Justice, A. J. Walker, and Stone, Judge, were present, the 
other Judge, E. W. Walker, being detained at home by pro- 
vidential causes. The Court agreed, in, the conclusion that the 
Judge, whose action they were reviewing, should not issue 
the writ of habeas cordis upon the petition before him. The 
Chief Justice put his opinion upon, the ground of a want of. 
jurisdiction in the courts of the State, but J,udge Stone ex- 
pressly said, " I withhold the expression.' of any opinion, on all 
those cases, in which the party, either by name,, or as one of 
a class or sect, stands, absolutely and unconditionally, exempt 
from conscription, without any other qualification; than that, 
he is of the given, class; such,, for example, as persons, under 
the age of eighteen years or over forty-five, officers judicial 
and executive of the Confederate and State Government, &c." 
The Judge then went on with his argument to show that the 
petitioner in the case before the Court was not exempt from 
conscription under the law of Congress. In doing so. it seems 
to me, he, himself, as a member of the Court, was assuming 
a jurisdiction of the case. If he had the right to construe the 
act of Congress for the purpose of ascertaining that the party 
was not entitled to exemption, he had. the same right to con- 
strue the- act, if his construction led. to the conclusion, that the 
party was exempt. A power to, construe the act at all, in- 
volves, necessarily, a jurisdiction in. the Court.. If this be so,, 
then the Court was equally divided; upon the question of ju- 
risdiction, and, therefore, there was no decision either way 
upon that question. 

Another case reported in the same pamphlet, and,,! sup-r- 
pose, decided at the same term, shows manifestly that the 
Court assumed and exercised jurisdiction over the cause. The 
case is that of Ex parte Stringer. The party being in custo- 
dy as a conscript, applied for a writ of habeas corpus upon the 
ground, that he was a regular member of the "Christian 
Church," and had conscientious scruples against bearing arms. 



In the matter of Bryaii. 

Stone, Judge, delivered the opinion of the Court, in which it 
was decided that the acts of Congress, known as the " Con- 
scription laws," were constitutional; and that the petitioner did 
not come within any of the exemption clauses of those laws. 
The opinion closes thus : " As the opinion of the entire Court 
is not yet announced, nor indeed formed, on the broad 
question of the jurisdiction of the State courts in cases like 
the present, and as we feel no hesitation in refusing the pre- 
sent application on the merits, we place our refusal on the 
ground stated above. The prayer of the petitioner is denied." 

If the Court had no jurisdiction of the cause, I should like 
to know how it acquired the power to decide the case upon 
its merits ? From this examination, it is manifest, I think, 
that neither the Alabama case, nor that of Ableman v. Booth, 
has lessened, in any sensible degree, the weight of authority in 
favor of the concurrent jurisdiction of the State courts in cases 
like that now under consideration. 

In closing this opinion, I will take occasion to return my 
thanks to the counsel on both sides, for the aid which they 
have given to the Court by their able and well considered 

Afterwards, the Court invited an argument from the bar 
upon this question: whether this Court, as such, had the pow- 
er to issue a writ of habeas corpus, and to determine of the 
case in open court. 

Mr. Moore, argued in favor of. the jurisdiction as follows : 

There has been no time since the organization of Govern- 
ment in the State, 1666-7, when this writ, so precious to free- 
men, did not run among us. 

1. The second charter of Charles 2nd, (1667,) (2 R. S. 4,) 
granted to the " Proprietors" the power " by Judges to award 
process, hold pleas, and determine all actions, suits and caus- 
es whatsover, as well criminal as civil, real, mixt, personal, 
or of any other, kind or nature whatsoever." The courts of 
England did issue writs of habeas corpus before 31 Ch. 2, and 
perhaps the Judges in vacation, Bac. Abr. Hab. Corp, B. 13. 

JUKE TEEM, 1863. 35 

In the matter of Bryan. 

2. Though this statute (passed in 1679) did not extend to 
the Colonies, the Colonial Legislature of 1715 ("Rev. Code of 
1820, c. 5, s. 3) declared in force in the colony all laws of 
England " providing for the privileges of the people." See 
Ired. Eev. p. 17, ch. 31. This emphatically introduced the 
act of 31st Charles, and thenceforth it is clear, that both 
courts, and Judges in vacation conld issue the writ. 

3. In December, 1776, the Convention which framed the 
State Constitution declared, among the rights of the people, 
" that every freeman restrained of his liberty, is entitled to a 
remedy to enquire into the lawfulness' thereof, and to remove 
the same, if unlawful, and that such remedy ought not to be 
delayed." Decl'n Rights, sec. 13. This language alone, would 
have given birth to the writ, if before that time it had been 
unknown. It is, however, nothing more than a declaration 
of the unremitting force of the then well known great writ of 
personal liberty, and a prohibition against its suspension. 
The language, so far as concerns the remedy, is addressed to 
the judicial authorities of the State. 

4. In April, 1777, the act (E. C. of 1820, ch. 115, sec. 2,) 
called the " court law," was exacted (or rather the previous 
acts revised and consolidated) which, in conferring power on 
the Judges, declares that " they shall have, use, exercise and 
enjoy the same powers and authorities, rights, privileges and 
pre-eminences, as were had, used, exercised and enjoyed by 
any former Judges of the superior courts," &c. This and the 
13th section of the Declaration of Eights, and the statute of 
31 Charles, did most certainly secure the frill benefit of the 
writ, both in term and vacation. 

5. In 1818, (Eev. Code, chapter 33, the present Supreme 
Court was established, with powers defined both for the Judg- 
es, and the Court. As Judges, it is provided by sec. 5, " that 
they, and each of them, shall have, use, exercise and enjoy 
the same powers and authorities, rights, privileges and pre- 
eminences," &c, as were had, used, exercised and enjoyed 
by Judges of the superior courts, except that none of them 
should hold a superior court. This gave them the power to 


In the matter of Bryan. 

issue writs of habeas corpus. As a court, among other pow- 
ers, they were vested (section 6) with the " power to issue 
writs of certiorari, scire facias, habeas corpus, mandamus, 
and all other writs which may be proper and necessary for the 
exercise of its jurisdiction and agreeable to the principles and 
usages of law." No one ever doubted that before the Kevi- 
sal of 1836, the Judges had power to issue writs in vacation. 

The quoted language of sec. 6, was evidently borrowed 
from sec. 14, of the Federal Judiciary act of 1789. 

Under that act and up to the establishment of our Supreme 
Court, the Federal Supreme Court was accustomed to issue 
the writs without reference to any case under its immediate 
jurisdiction, or which could come under it; Ex parte Boll- 
man, 4 Cr. at 101. 

In the United States v. Hamilton, 3 Dall. 17, (1795,) the 
prisoner charged with treason, had been committed upon the 
warrant of the District Judge of Pennsylvania — the Court 
issued the writ and discharged him on bail. 

In Ex parte Burford, 3 Cr. 448, (1806,) the prisoner had 
been committed to jail in the District of Columbia, in default of 
finding security for good behavior. He was brought up and 
discharged, ^because the warrant did not state "some good 
cause certain, supported by affidavit." 

In Ex parte B 'oilman, 4 Cr. 75, (1807) — prisoner commit- 
ted upon a charge of treason ; writ issued by Supreme Court 
after elaborate argument, and prisoner discharged. 

In Ex parte Kearney, 7 Wheat, 39, (1822,) the doctrine in 
Ex parte Bollman, is affirmed. 

The jurisdiction is said to be appellate, because the writ 
supervises the commitment by an inferior tribunal — this is a 
refinement; Ex parte Metzger, 16 Curt. 352. v 

It took jurisdiction in all cases of a technical appellate cha- 
racter, except when the defendant was in confinement under 
the proceedings of a court of competent jurisdiction ; Ex par- 
te Wat7cins,S Pet. 201. 

6. Without any grant to issue the writ, the Court would 
have had the power from its very constitution; the dis- 

JUNE TERM, 1863. 

In the matter of Bryan. 

trict courts, composed of three Judges, possessed it, though 
never specially conferred ; Rev. Code, 1820, chap. 115. The 
grant was made of abundant caution. The words, " which 
may be proper and necessary for the exercise of its jurisdic- 
tion," refer not to the writs named, but to the antecedent 
words, " and all other writs ;" Ex parte Bollman, at 101. 
It is clothed with an independent power to issue writs of 
habeas corpus, mandamus, &o. 

7. If the Court can exercise similar jurisdiction to that ex- 
ercised by the Supreme Court of the United States, in United 
States v. Hamilton, Ex parte Bur ford, Ex parte Bollman, 
it concedes the question, and admits the power in the Court 
to issue in all cases of illegal confinement where no court has 
taken jurisdiction of the case. 

Mr. Strong, District Attorney of the Confederate States, 
with whom was Mr. Bragg, argued as follows : 

Has the Supreme Court jurisdiction to issue the writ of ha- 
beas corpus f 

The settled opinion of the profession, including the Judges 
of the Court itself, seems to have always been against the ju- 
risdiction, as is shown by the fact, that no attempt has ever been 
made to exercise it, and that writs of the kind nave been is- 
sued and acted upon by the individual judges during the ses- 
sion of the Court. 

1st. It is contended that the Court has this jurisdiction by 
the Common Law, it being "incident by that law to every 
Superior Court of Record." This reasoning would be valid 
if the jurisdiction of the Court were to be determined by the 
Common Law. But this is not the case. The powers of all 
our courts depend solely upon the statute which creates them. 
The Common Law itself, in this State, depends for its force 
upon a statute. Rev. Code, chap. 22. And the Legislature 
could uproot it to-morrow ; . and establish the code of Napole- 
on in its stead. There is the same kind of difference between 
a Court of Record, in England, and in this State, that there 
is between corporations. Trustees of Davidson College v. 
Chambers' Executors, 3 Jones' Eq. 268. 


In the matter of Bryan. 

The clause in the bill of rights that "every freeman re- 
strained of his liberty is entitled to a remedy to enquire into 
the lawfulness of such restraint, and to remove the same, if 
unlawful, and such remedy ought not to be denied or delay- 
ed," is certainly satisfied by the grant of power to the eight 
circuit judges, both in term time and in vacation, and to the 
three Judges of this Court, in vacation, to issue and act upon 
the writ. The obligation of the State. Legislature to protect 
the citizen in the enjoyment of the two great rights of person- 
al security, and private property, is perfect. The obligation, 
. as to the third great right of personal liberty, cannot be render- 
ed more than perfect, by the above clause of the Bill of Rights. 
And the establishment of a Supreme Court by the constitu- 
tion, though aided by the clause in question, can no more give 
that court original jurisdiction to protect one of these rights 
by habeas corpus, than to protect the others by writs of re- 
plevin,. &c. 

That the Superior Courts, in. term time, have the right to 
issue writs of habeas corpus, is manifest from the statute which 
confers generaljurisdiction ; Rev. Code, chap. 31, sec. 17, and 
from sections 4 and 5 of chap. 55 of the Rev. Code. 

2d. It is*contended that the jurisdiction is conferred by 
the statute. That portion of it, material to our enquiry, is as 
follows: The court shall have "power to issue writs of cer- 
tiorari, scire facias, habeas corpxis, mandamus, and all other 
writs which may be proper and necessary for the exercise of its 
jurisdiction, and agreeable to the principles and usages of law." 
It is admitted that the easy natural construction, which the 
learned and unlearned would place upon this sentence, is that 
the writs enumerated, are only those which are ancillary to 
the other powers of the Court, and necessary to the exercise 
of its jurisdiction. For it is a settled principle, of both legal 
and grammatical construction, that the words, " all other 
writs," following an enumeration of particular writs mean 
"all other such writs." Owen's on Statutes, 9th Law Libra- 
ry 777 ; 2d Rep. 46 ; State v. Weaver, Busb. 13. So that the 
sentence may fairjy be translated, "all other writs such as 

JUNE TERM, 1863. 

In the matter of Bryan. 

the above" or " all other writs which like the above, may be 
necessary, &c To this, it was objected by Mr. Moore and 
Mr. Winston, that no cases could be conceived in which all 
the enumerated writs could be used in an ancillary character, 
and that, therefore, they must have been intended to be us- 
ed without restriction. The main force of the argument 
was spent upon this point, but it fails totally. As to the- 
first two, there is no difficulty. As to the writ of ha- 
beas corpus, it would certainly lie to bring up a witness to 
testify, where his presence would be necessary, under sec. 15, 
chap. 33, Eev. Code, or to bring up to answer, a defendant in 
a writ of capias ad satisfacienditm, issued from this Court, 
who had given bond for his appearance, and had been im- 
prisoned upon process issuing from another court. As to the 
writ of mandamus, when upon an appeal to this Court, the 
judgment is, that the peremptory writ issue, it then becomes 
necessary to the exercise of this Court's jurisdiction, and is 
ancillary in its character. It may also be used to compel the 
the Superior Court to send up a record, or to do any other 
duty. Bacon's Abridgment, Letter A, p. 419. 

It is asked by the counsel, why enumerate these writs in 
the statute, if of a secondary character, since, in that case-, 
they would be included in the general words, " all writs ne- 
cessary and proper to the exercise of its jurisdiction "? In 
answer, it may be asked why insert these general words 
themselves, since, without them, the Court would have had 
the power which they, profess to confer ? 

The construction now contended for, has been placed upon 
the act, by this Court, Jones v. McLauUn, 1 Jones 392. In 
that case, it was decided that a writ of scire facias would not. lie 
against bail, because that was an original proceeding, and it 
was not necessary to the exercise of the jurisdiction of the 
Court. The writs enumerated in the same clause, must of 
course stand upon the same footing. And, if the Court can- 
not, for the above reason, exercise an original jurisdiction in 
issuing the writ of scire facias, it cannot, for the very same 
reason, do so, in issuing the writ of habeas corpus. 


In the matter of Bryan. 

Section 14 of the Judiciary Act of the "Dinted States, which 
'confers jurisdiction upon the Supreme Court, is nearly identi- 
cal in language with our own. That act has received the con- 
struction now insisted on. Ex parte : B oilman and Swartwout, 
4 Cranch 75 ; Mo parte Metsger, 16 'Curtis 318. 

If it be an absurdity, that a single judge can do in vacation 
what the whole court cannot do in term time, the fault is with 
the Legislature. But it ; may jhave been well intended that 
■this tribunal should, during term "time, be only employed 
with those questions,, the decision -of which, by an inferior 
tribunal, had failed to give satisfaction. 

3STo -necessary conflict of decision-, will arise out of this con- 
struction. From the judgment of a superior court, in term 
time, an appeal will lie to the Supreme Court; Rev. Code, 
■chap. 4, sec. 21. In the mean while, the prisoner will be in 
■custodia legis, Hurd on Habeas Corpus, p. 324, and the Court 
may either take his recognizance for his appearance, at its 
next term, or before the Supreme Court, to perform the final 
judgment. It is believed, upon the equity of the statute reg- 
ulating appeals, above quoted, and the general principles 
governing the writ of recordari, that hy that writ, the deci- 
sions of any judge in vacation might be brought to this Court 
for review. The writ was thus used in Wisconsin to bring up 
for review the decision of one of the Justices of the Snpreme 
Court of that State ; Ableman v. Booth, 21 How. 506., But, 
if the evils from the conflicting decisions of the judges out of 
court cannot be thus remedied in this case, neither can they 
in the other. 

Mr. P. II Winston, Sen'r., in favor of the jurisdiction, 
argued as follows : 

Every Court of general jurisdiction in civil cases, has pow- 
er to issue w r rits of habeas corpus. It belongs to the courts of 
Chancery, Common Pleas and Exchequer as well as the King's 
Bench ; Bac. Abr. Hab. Corp. B. 2 ; Com. Dig. ; BusheVs 
case, Yaughan, 155 ; Wood's case, 3 Wilson, 172. 

This jurisdiction is not derived by implication from 31 Car. 
■2, for BusheVs case was before that statute, and in Woods 

JUNE TEEM, 1863. 41 

> __ 

In the matter of Bryan. 

case, it is treated by the Court as inherent in every court of 
superior jurisdiction. It is founded on, the principle of the 
common law, thus expressed in our State Constitution, " Eve- 
ry freeman restrained of his liberty, is entitled to a remedy 
to enquire into the lawfulness thereof, and remove the same 
if unlawful, and such remedy ought not to be delayed or de- 
nied ;" Declaration of Rights, sec. 13. 

2. Our Habeas Corpus Act, Rev. Code, ch. 55, by giving 
power lo each Judge of the Supreme and Superior Courts to 
issue the writ, by necessary implication gives the power to 
the courts. This power is assumed by section 5, to exist in 
the Superior Courts, either by common law or by force of that 

3. The power is expressly conferred by the act, creating this 
Court, Rev. Code, ch. 33, sec. 6. After defining its appellate ju- 
risdiction, the act declares that it shall have original and ex- 
clusive jurisdiction in repealing letters patent, and shall also 
have power to issue writs of certiorari, scire facias, habeas 
corpus, mandamus, and all other writs, which may be proper 
and necessary for the exercise of its jurisdiction, and agreea- 
ble to the principles and usages of law." " Habeas corpus" 
in this clause, means habeas corpus ad subjiciendum, c&c. — 
This is a grant of the substantive power to issue writs of hab- 
eas corpxis. It is associated with jurisdiction, undeniably ori- 
ginal; (to repeal letters patent.) No case can be stated in which 
this writ can be needed, or useful for the exercise of its appellate 
jurisdiction, or its original jurisdiction in other matters. It 
is consistent with the grammatical construction of the sen- 
tence. The words, " which may be proper and necessary for the 
exercise of its jurisdiction," &c, have for their antecedent 
" all other writs." This clause is a copy of the 14rth section of 
the Judiciary Act of the United States, with the exception of 
a few words, which cannot vary the construction, and in the 
case of JEx parte Bolivian and Swartwout, 4 Cranch, 75, the 
Supreme Court of the United States decided that that section 
conferred on that Court a substantive power to issue the writ 


. , \ 

In the matter of Bryan. 

for the purpose of obtaining jurisdiction and exercising it in 
cases not otherwise within its cognisance. 

Unless this construction be adopted, the citizens of this 
State have no such efficient remedy for unlawful restraints of 
their liberty, as the 13th sec. of the Declaration of Rights, makes 
it the duty of our Legislature to provide. A Judge out of court, 
has not the means of fully investigating cases or of enforcing 
his decisions. His judgments cannot have the requisite au- 
thority, efficacy or publicity, and the superior courts sit but 
twice a } T ear for a week each time. 

Pearson, C. J. At the beginning of the term, the Judges 
i requested the members of the bar to investigate the subject 
and give their opinions and their reasons for them pro or con, 
on this question : Has the Court jurisdiction to issue a 
writ of habeas corpus, returnable to the Court, and there- 
upon to inquire of the lawfulness of any restraint put on the 
liberty of a citizen. We have been favored with, the opin- 
ions of Messrs. Moore and Winston in favor of the jurisdic- 
tion, and of Mr. Strong against it, and the subject has been 
fully discussed. After giving it due consideration, we are of 
opinion that the Court has jurisdiction. 

This conclusion is put on two grounds : 

1st. The Court has jurisdiction by common law. The laws 
of our State rest for a foundation upon the common law of 
England. It is an admitted principle of the common law, 
that every court of record of superior, jurisdiction has power 
to issue the writ of habeas corpus, which is the great 
right for the protection of the liberties of the citizen. — 
This ',' power is an incident to every superior court of record." 
3 Wilson, 1T2 ; 3 Bac. Abr., title Habeas Corpus; notes. It 
arises from the obligation of the King to protect all of his 
subjects in the enjoyment of their right of personal liberty, 
and for this purpose to inquire by his courts into the condition 
of any of his subjects. As this duty of the King in regard to 
any of his subjects, confers on every court of record of superi- 
or jurisdiction the power to issue the writ, as incident to its 

JUNE TEEM, 1863. 43 

In the matter of Bryan. 

existence, it follows that the doty of the State of North Caro- 
lina in regard to its citizens, must confer a like power on all 
of its courts of record of superior jurisdiction, as incident to 
their existence ; for surely, nnder our Constitution and Bill of 
Rights, in which is reiterated the great principle of Magna 
Charta, " every free man restrained of his liherty is entitled 
to a remedy to inquire into the lawfulness thereof, and to re- 
move the same if unlawful, and such remedy ought not to be 
denied or delayed." The personal liberty of our citizens must 
be equally as well protected and secured as the personal lib- 
erty of the subjects of the King of England. 

Our Constitution vests the legislative power in a General 
Assembly ; the Executive power in a Governor, and the Su- 
preme Judicial power in a Supreme Court ; so that the estab- 
lishment of a Supreme Court, without any words to that ef- 
fect, necessarily and as an incident to its existence by force of 
the Bill of Rights, of the Constitution and the principles of 
the common law, invests it with power fo inquire by means 
of this great "Writ of Right into thelawfulness of any restraint 
upon^he liberty of a free man, and if in establishing a Su- 
preme Court, the Legislature had in express terms denied the 
Court the power to issue this writ and prohibited it from so 
doing, such prohibition would have been void and of no ef- 

Our conclusion that the Supreme Court has power to issue 
the writ is confirmed by a consideration of the provisions of 
the habeas corpus Act, Rev. Code, chap. 55. It is taken from 
two English Statutes, 31 Charles II and 56 Geo. III. We 
have seen that all of the Superior Courts of England had pow- 
er by the common law to issue the writ, but the courts could 
only act in term time, and a free man might be unlawfully 
imprisoned in vacation time, so the remedy would be delay- 
ed, and to provide the means of speedy inquiry into the cause 
of imprisonment, it is enacted by 31 Charles II, that every 
Judge of all the courts of superior jurisdiction, on the appli- 
cation of any person imprisoned upon a criminal charge, (un- 
less after conviction,) shall in the vacation time, under a pen- 


In the matter of Bryan. 

•alty of five hundred pounds grant a wrife of habeas corpus, 
a-eturnable without delay, and by 56 George III it is enacted, 
that all of the Judges shall, in the vacation time, under a like 
;penalt} T , in the same manner grant the writ on the applica- 
tion of.any person imprisoned or restrained of his liberty for 
any cause other than a criminal charge. So in England any 
person, whether imprisoned on a criminal charge or restrain- 
ed of his liberty for any other cause, had a right during the 
sitting of the courts, by application to the Court, and during 
the vacation by application to any one of the Judges, to have 
the cause of his being imprisoned or restrained of his liberty 
Inquired into without delay. 

Our habeas corpus Act, as before observed, is taken from 
these two English Statutes, and not only gives power to, but 
requires, under a penalty of twenty-five hundred dollars, any 
Judge of the Supreme or Superior Courts in the vacation 
time, to issue the writ of habeas corpus on the application of 
any person imprisoned on a criminal charge or otherwise re- 
strained of his liberty. 

It is manifest that this act pre-supposes that both tli^ Su- 
preme and the Superior Courts had power in term time to 
issue the writ, and the intention was to extend the remedy to 
the vacation. This must be a declaration by the Legislature 
of the fact that both the Supreme and the Superior Courts had 
power to issue the writ, or we must adopt the absurdity, that 
the Legislature intended to give to a single Judge in vacation, 
a power which the Court did not possess in term time, and 
we can only account for the fact that while giving this power 
to the Judges in vacation, the Legislature did not in express 
words confer a like power on the courts, upon the ground 
that it was taken for granted that our courts, like those in 
England, already had the power ; for under the unrestricted 
legislative power of the General Assembly, it not only had 
the power, but it was its duty by the Constitution and Bill of 
Rights to confer this power on both the Supreme and Supe- 
rior Courts, if the Courts did not already possess it. 

2d. Suppose, for the sake of argument, it was necessary that 

JUNE TEEM, 1863. 45 

In the matter of Bryan. 

the power should be conferred on the Supreme Court by stat- 
ute, we are of opinion that it is conferred by the Act estab- 
lishing the Court ; Eev. Code, chapter 33, section 6. It is in 
these words : " The courts shall have power to hear and de- 
termine all questions of law brought before it by appeal or 
otherwise from a superior court of law and to hear and de- 
termine all cases in equity brought before it by appeal or re- 
moval from a court of equity,, and shall have original and ex- 
clusive jurisdiction in repealing letters patent, and shall also 
have power to issue writs of certiorari, scire facias, habeas 
corpus, mandamus, and all other writs which may be proper 
and necessary for the exercise of its jurisdiction and agreea- 
ble to the principles and usages of law," 

There are several kinds of writs of habeas corpus :. inferior 
ones, to enable the Court to exercise its jurisdiction, for in- 
stance, ad testificandum — to bring a man out of jail to be 
a witness ; and the great Writ of Right, habeas corpus 
to .bring any citizen alleged to be wrongfully imprison- 
ed or restrained of his liberty, before the Court, with the 
cause of his arrest and detention, that the matter may be in- 
quired, of and the party set at liberty if imprisoned against 
law. This proceeding is original, and. in no wise connected 
with or dependent on any other matter over which the Court 
has jurisdiction. 

The question is : Does the Act restrict the power of the 
Court to writs of the inferior sort, or does it confer power to 
issue the great Writ of Eight ? 

In support of the first construction, it is urged that the 
words, " all other writs which may be proper and necessary 
for the exercise of its jurisdiction," show that the writs before 
specified, were intended to be of the same kind, and must 
have the effect of restricting the power to writs of the inferior 
sort. Several considerations are urged in reply : In strict 
grammatical construction, the restrictive words, " which may 
be proper and necessary for the exercise of its jurisdiction," 
refer to the last antecedent " all other writs," so as to make 
the true reading (supplying the elipsis,) " and shall also have 


In the matter of Bryan. 

power to issue all other writs which may be proper and neces- 
sary for the exercise of its jurisdiction." This further reply 
is made : If the intention was merely to give power to issue 
the inferior writs necessary to the exercise of its jurisdiction, 
(which power every court in fact has, by implication,) it w^ts 
sufficient to say, " and the Court may issue all such writs as 
may be necessary for the exercise of its jurisdiction." Instead 
of this simple clause immediately following the grant of ori- 
ginal jurisdiction to repeal letters patent, comes this formal 
commencement : " and shall also haDe power to issue writs 
of certiorari, scire t fdcias, habeas corpus, mandamus." Why 
this formal announcement of substantive grant of power f 
And why are there four writs particularly named> if the ob- 
ject was merely to authorize the Court to issue the inferior 
sort of writ's ? 

In questions of this kind, the Court is not confined to the nar- 
row field of the import of words, construction of sentences 
and rules of grammar, but may draw to its aid considerations 
of a more comprehensive nature, and if due weight is given 
to the power of the Legislature — its duty — the object in view 
and the nature of the subject — the conclusion is irresistible, 
that it was the intention to give the Court power to issue the 
great ""Writ of Right? 

The power of the Legislature in respect to the jurisdiction 
it was about to confer on the Supreme Court then to be es- 
tablished, was unlimited — it had the same power to confer 
■original as appellate jurisdiction. 

It was the duty of the Legislature under the Bill of Rights 
: and the Constitution, to provide in the most ample manner for 
the protection of the liberty of "all free men." The object 
in establishing a Supreme Court, was to provide the tribunal 
'best calculated to secure uniformity and correctness of deci- 
sion in respect to all questions involving " rights of person " 
and " rights of things." This it was supposed could be ac- 
complished by a Court composed of three judges. From the 
nature of the subject, in actions at law, and indictments where 
the facts 'must be tried by a jury, it was seen to be impracti- 

JUNE TEEM, 1863. 47 

In the matter of Bryan. 

cable for the Supreme Court to exercise original jurisdiction. 
Hence, it was deemed expedient, that all actions and indict- 
ments should originate in the lower courts, where the facts 
can be found so as to present to the Supreme Court only ques- 
tions of law by way of appeal : In suits in equity where, al- 
though the facts are sometimes complicated, the mode of trial 
is by the court, it was deemed expedient that the proceedings 
should originate below and then be brought up by appeal or 
removal after being set for hearing. So, in respect to these 
remedies only appellate jurisdiction is conferred. 

There remained a fourth distinct and important subject 
of jurisdiction, to wit: the writ of habeas corpus. From 
its nature, no complicated state of facts can be presented, 
so that consideration presented no objection to the grant 
of original jurisdiction to the Supreme Court. While on the 
other hand, as all of the Judges of the Supreme and Superi- 
or Courts had power to issue such writs and decide upon the 
lawfulness of the imprisonment, in order to prevent conflict 
of decision and utter confusion and chaos, and to give uni- 
formity and correctness to decisions involving the liberty of 
the citizen, the necessity of conferring original jurisdiction on 
the Supreme Court to issue the writ, and decide on the right, 
was patent; and, if the statute in question does not confer the 
power, no reason can be assigned for the omission : unless it 
was the opinion of the Legislature that the power would at- 
tach to the Court as soon as it was established, as an incident 
of its existence, upon the principles of the Common Law and 
Bill of Rights. 

The Legislature had full power. It was its duty — there 
was a patent necessity — the object in establishing the Supreme 
Court could not otherwise be fulfilled, and no objection to it 
could be suggested. It follows that the Court has the power, 
either on the ground that the statute confers it, or the omis- 
sion to do so is a legislative declaration that the Court posses- 
ses the power as incident to its existence. 

On the able argument with which we have been favored 
by Mr. Strong, he called attention to the fact that the act of 


_ . , 

In the matter of Bryan. 

Congress, 1789, establishing the Supreme Court of the United 
States, used nearly the same language as the act of the Legis- 
lature establishing the Supreme Court of this State, and that 
in the construction of the act of Congress, the Supreme Court 
of the- United States have decided that the Court cannot issue 
the writ of habeas corpus , except where the writ is incident 
to an appellate jurisdiction. 

That is true, and it seems to account for the general impres- 
sion which has prevailed in this State against the power of 
the Court. The fact that so many applications have been 
made to the Judges for writs of habeas corpus, during the last 
few months, has directed, attention to this subject, and a clos- 
er and more serious investigation than the subject had before 
received, results in the conclusion that the Court, has the pow- 
er, and that the erroneous impression which had prevailed, is 
to be ascribed to the circumstance that due weight had not 
been given to the difference between the two Courts in regard 
to the sources from which jurisdiction may be derived. The 
Supreme Court of the United States can derive, no jurisdic- 
tion fro mi the principles of the Common Law.. Its jurisdic- 
tion must rest solely on acts of Congress, and the power of 
Congress to confer jurisdiction rests on the constitution of the- 
United States. It can have no- power except that which is 
conferred by the constitution, and by it the power to establish 
a Supreme Court,, is restricted to a court of' appellate juris- 
diction, except in cases affecting embassadors, &c, art.. 3, 
sec; 2. 

The very reverse of all this is the case in respect to the Su- 
preme Court of the State. It may derive its jurisdiction from 
the principles of the Common Law. The power of the Legis- 
lature to confer jurisdiction is unlimited, and there is no rea- 
son why it .should not, if deemed expedient, have established 
a Supreme Court with full original jurisdiction, or one with 
jurisdiction partly original and partly appellate. 

In the opinion of Judge Marshall, Ex parte Bolivian, 4th 
Cranch 98, 2 Curtis 24, a full and critical examination is 
made of the act of Congress, and he comes to the conclu- 

JUNE TERM, 1863. 49 

In the matter of Bryan, 

sion, that by its true construction it would confer on the Su- 
preme Court jurisdiction to issue the writ of habeas corpus, 
but for the fact that it was to be construed in reference 
to the limited power of Congress. Our act, on the con- 
trary, is to be construed in reference to the unlimited pow- 
er of the Legislature, and in this view the opinion of Judge 
Marshall strongly supports the conclusion to which we have 

Mr. Strong also cited the case of Jones v. McLaurin, 7 
Jones, 392. That was a scire facias against bail, and the 
Court decide that it has not jurisdiction, because the scire fa- 
cias, as there used is, in effect, an action of debt, in respect to 
which the Court has only appellate jurisdiction. The ques- 
tion we have before us is plainly distinguishable. The habeas 
corpus, is totally distinct in its nature from any action at law, 
or proceeding in the nature of an action, or suit in equity, or 
indictment, and is put by us on grounds peculiar to itself. 

Our conclusion is, that the Court has power to- issue writs 
of habeas corpus, returnable to the Court, and thereupon to 
inquire of and decide upon the lawfulness of any restraint put 
on the liberty of a citizen. This opinion does not affect the 
question of the jurisdiction of a State court where the arrest 
is justified on the authority, or by color, of an act of the Con- 
gress of the Confederate States. That question may be the 
subject of future consideration. 

Afterwards, the cause was taken up on its merits. 

Mr. Moore, with whom was Henry C. Jones, for the peti- 
tioner, argued as follows : 

1. In the view of able lawyers, the substitution involves 
a contract with the Government : they maintain that the pro- 
vision that substitutes, not liable for duty, might be received 
for such as were, with a knowledge by the law-maker, that 
the substitution would be attended with heavy sacrifice of 
money, is equivalent to a declaration by the Government, 
that those who would buy substitutes should be discharged 
from services for such time as the substitute should be put in. 



In the matter of Bryan. 

Did not the Government intend to pledge its faith to this ex- 
tent, or allow it to be so understood ? It is certain that many 
arts were resorted to to make the law less distasteful, as may 
be seen in sections 1, 4, 6, 7, 8, 9, 13. Government, under the 
orders it established, was a great gainer by substitution. It 
took under order 58, all conscripts, though " not fit for all 
military duty," that were able to serve for nursing and simi- 
lar duties : maimed men were taken ; but none such were 
allowed to become substitutes — none, unless they were "sound 
and in all respects fit for military service." The fact is noto- 
rious, that a sound man is never wittingly exchanged for a 
worse one, though liable to duty : the bargain is always the 
other way — this practice of considering every man, not bed- 
ridden, fit for service, has driven thousands of invalids to re- 
sort to substitution to save themselves from death by the 
hardships of the service. But it is said that Congress could 
have intended no such bargain, because it was expected that 
from the boasts of the enemy, the country would need every 
available man. This was not the expectation- — neither the 
press nor public councils held out any such idea. We were 
constantly told that peace was but two or three months ahead; 
and the law itself stopping short by ten years of the ordinary 
military age, ignores any such idea. It is yet five years short 
of the allowed extent. It was at least reasonable for him who 
was invited to the privilege of putting in a substitute, to ex- 
pect that, if the age of conscription were extended, those who 
were neither in the service, nor had hired substitutes, would 
be first called. It had been mere mockery to allow so short 
a respite to the conscript after prescribing to him that his 
substitute must be put in (and of course be paid) for three 
years or the war. Did not good faith require of the Govern- 
ment some distinct expression if such had not been its mean- 

It is suggested that if such had been its purpose, Congress 
was incompetent to pledge the national faith for its sanction, 
and that a succeeding Congress might in good faith annul the 
bargain. If Congress may make war, it may certainly, with- 

JUNE TEftM, 1863, 51 

In the matter of Bryan. 

in the scope of its powers, determine the mode of raising ar- 
mies. It may enlist upon what bounty, whether in money or 
privileges, it may please. It may borrow money and pledge 
the entire revenue to fill the treasury. It may procure the 
services of the citizen for two years by agreeing to discharge 
him for the third. It may grant or withhold supplies both of 
men and money. In a word, it can stop a war — and it is no 
answer that another Congress would not be bound, because of 
the disastrous consequences of the acts of the previous one. 
A nation's faith is, to a great extent, its wealth ; and it will 
be worthless, if, after pledging it, the public authority shall 
violate it, because the bargain is hard. Such a nation could 
not be trusted in war. Its soldiers taken in battle would be 
put to the sword, because it kept no faith. I admit a differ- 
ence in a bargain between a nation and its citizens, and a bar- 
gain between two nations. The former may be violated if 
necessary in a very urgent case, upon making compensation ; 
the latter must be submitted to, if fairly made. But no peo- 
ple could either love or respect its rulers who should lure 
them to action by promises and break them without over- 
whelmning necessity, or liberal compensation. 

2. But if there be no contract, only those who, when the 
calls are made, are not " legally exempted from military ser- 
vice,^ can be called into service. JSFow, who, on 27th Sep- 
tember, 1862, and before the passage of the act of that 
date, were " legally exempted ?" To determine this question, 
we must look to previous legislation. The act of 16th April, 1S62, 
sec. 9, exempted all conscripts between 18 and 35 years of age, 
who might put in substitutes " not liable for duty," under that 
act. The act of 21st April, 1862, exempted (among other persons) 
mail carriers and ferrymen. Though exempted by different 
enactments, the exemption of each was secured by lavj-— and 
neither of the persons, thus exempted, could be put into ser- 
vice so long as this legal right of exemption continued^ On 
this footing, they stood alike on 27th September, 1862, when 
the second conscript act was passed, which subjects to con- 
scription all persons between 35 and 45 years of age, who are 


In the matter of Bryan. 

not at the times of the calls for them " legally exempted from 
military service." It is certain that the mail carrier and fer- 
ryman did not become liable to be conscripted under this act. 
The only reason why they did not, is because they. were "le- 
gally exempted from military service" under a law still in 
force. This being granted, how then does the person who 
had put in a substitute become liable? The law of 27th 
Sept. 1862, which extended the age to 45 } 7 ears, and did 
but amend the law of April, 1862, which had given exemp- 
tion on putting in a substitute, did not profess to take away 
any privilege of those who, before that time, had been exempt- 
ed by law. Now, if the mail carrier and ferryman, between 
those ages, were still excused, it was- because they had been 
legally exempted by an act which had not been repealed ;; 
and in like manner h-ad been exempted, the principal putting 
in a substitute, by virtue also of an act which had not been 
repealed. In a word, did the act of September 27, intend 
to look to the then status of those who had been " legally ex- 
empted," or to some new status introduced in the act ? The 
only term used concerning exemption evidently has refer- 
ence to an existing status., and not to one then introduced. — 
In regard to mail carriers and ferrymen, it is manifest that 
the act designed, to look to a previously created status / and 
by what rule of legal interpretation can w T e exclude other per- 
sons having a like previously created legal exemption, unless 
some other words maybe found indicating that purpose?: 
There are none. 

3. But it is said, that though such be the proper interpre- 
tation of the act per se, yet the Secretary at War is authorised 
to regulate substitution as he may deem advisable ; and I am 
referred to section 9, of the conscript act of 16th April, where- 
in it is provided " that persons not liable to duty, may be re- 
ceived as substitutes for those who are, under such regula- 
tions as. may be prescribed by the Secretary of War." On 
the 19th May, 1862, the Secretary published certain regula- 
tions, (General orders No. 37,) among which, by paragraph 4, 
it is provided, that the exemption gained by putting in a sub- 

JUNE TEffcM, 1863. 53 

la the matter of Bryan. 

stitute shall be " valid only so long as the said substitute is 
legally exempted." I have endeavored to show that the ex- 
emption, by the act, is for three years or the wai^ without re- 
ference to the time when, if out of serviee, the substitute 
would become liable. It is contended, that however right, 
abstractedly considered, this interpretation may be, yet, the 
Secretary is invested with a power over substitution, which. 
•enables him, by regulations, to modify the legal interpretation 
of the act itself, and that he may shorten or prolong the time 
•of exemption by substitution. If so, then he is invested with 
a vigorous faculty of legislation indeed. A faculty to make a 
regulation inconsistent with the very law which empowers 
him to regulate ! The right in time of war to substitute an- 
other in the, place of the drafted soldier has been known to, 
and exercised by, oftr people at all times ; and when it was 
provided that "persons not liable to duty may be received 
as substitutes," it was intended to confer a privilege on the con- 
script, and not to allow to the Secretary of War a pure dis- 
cretion to receive or not, as he might please. Under the 
clause, he is hound to receive in substitution " persons not 
liable for duty," and the only discretion conferred on him, is 
to regulate the mode and manner by which they shall be re- 
ceived. He has no power to allow one substitute for a month, 
another for a year, and third, for the war. When substitutes 
are received, they are to b&full substitutes, and are to occupy 
the entire place of the principal. The Secretary cannot halve 
the substitution. There has been, heretofore, no such substi- 
tution, though, at all times, it is necessary to ascertain his fit- 
ness, and regulate the mode of receiving the substitute. The 
law, itself, selects those who are fit for substitutes, by declar- 
ing that they are " persons not liable to duty," and, submits to 
the Secretary only the power to provide for the mode and man- 
ner of receiving them into the service. It may be regarded as 
quite clear, that the act did contemplate as fit substitutes all 
such as were citizens or domiciled residents, and were able to 
bear the fatigues of war, and who might lawfully volunteer 
m the service. And it is equally clear, that while the persons 


In the matter of Bryan. 

are such as are "not liable to duty," they must, in the nature 
of things, be fit for duty. It is asked, why is not the principal 
also discharged when a minor under 18 is the substitute? I 
think there is a manifest difference in the cases. I do not 
place it on the recent regulations of the Secretary of War. — 
In the first place, at the time of the passage of the conscript 
act, it was an army regulation that persons under the age of 
eighteen, were not receivable into the army as recruits; (see 
Army Eegulations of Confederate States, sec. 1299, and Act 
of Congress 6th March, 1861.) This was an old regulation 
of the United States, and became that of the Confederate 
States, at the first Congress. It is a fair inference that such 
persons were deemed legally unfit, both separately,. and as a 
class, for any military service. Such persons, besides be- 
ing unfit, by reason of their tender years, had no disposi- 
tion of their own time — they were bound to serve their fa- 
thers till they might be required to serve their country. In the 
next place, as the act of April makes all persons conscrips as 
they shall arrive to the age of eighteen years and subject to 
the call of the President as they come to that age, they have 
no right to evade that service by previously undertaking a 
service for an individual, inconsistent with this foreordained 
public duty, nor had any person a right, for his own benefit, 
to contract with them so as to produce that result in the face 
of a known law. The minor coming to the age of eighteen is 
quasi under the law prospectively. But there was no law 
which affected the man over thirty-five — nothing less than a 
new law could affect him : and his rights and duties could not 
be predicated on a law which might or might not be made. 

Mr. Strong, with whom was Mr. Bragg, contra, argued as 
follows : 

Is a conscript under the Act of Congress of April 16th, 
A. D. 1862, who was discharged upon furnishing a substitute, 
between the ages of thirty-five and forty, made liable to mili- 
tary duty by virtue of the second conscription act of Septem- 
ber 27th, 1862? It is maintained by the Government, that- 
he does thus become liable. The transaction is no contract, 

JUKE TERM, 1863. 55 

In the matter of Bryan. 

but the mere grant of an indulgence, whereby the party is, 
for his own comfort solely, relieved from a hard service. — 
There was no possible inducement, to the Government for suck 
a contract— no consideration. The services of the substitute 
were at the command of the Government, as much as those 
of the principal; and Congress by taking primarily the prin- 
cipal, showed its preference for him as a soldier, and for the 
substitute as a citizen. So, there was a positive disadvantage 
to the Government. The labor lost and money spent in pro- 
curing the substitute, were not at the request of the Govern- 
ment, and can, therefore, furnish no consideration for a con- 

It cannot be supposed that Congress intended, without pro- 
curing thereby the very slightest advantage to the Govern- 
ment, to place it in the power of all men between the ages of 
eighteen and thirty-five years/' to put themselves beyond the 
reach of their country's call, during the war; at a time too, 
when the enemy were declaring that our subjugation was a 
simple question of arithmetic, and depended upon the process 
of giving man for man, to death, or more if necessary, till our 
last man was gone. Such legislation would have been an act 
of madness unparalleled in the annals of time! 

Congress had no power, under the constitution, to make 
such a contract. The. right to call into service the military 
strength of the country, being a sacred trust, confided for the 
benefit of all, cannot he alienated ! . If so, one Congress could 
place it out of the power of a succeeding Congress to raise an 
army, and thereby that clause of the Constitution, giving 
Congress the power to raise armies be defeated. Congress 
cannot place, or allow to be placed, the whole fighting popu- 
lation, on the footing (for this purpose at least) of foreigners. 

Mr. Moore contended, that from this conclusion, it would 
follow, that Congress would have no right to pledge the fu- 
ture revenue of the country so as to bind its successors. The 
cases are not analogous. It would be an analogous case 
should Congress attempt to make a contract with the citizen, 



Iii the matter of Bryan, 

that if he would pay a certain tax now, he should never after- 
wards be taxed at all. 

He contended^ that it would also follow that no binding 
contract could be made that an array in the power of its ad- 
versary should fight no more during the war, and that it 
might, therefore, have to be cut to pieces ! The difference in 
the two cases is, that under the war-making power, as inter- 
preted by all writers upon international law, all contracts 
with the enemy, respecting the conduct of the war, are with- 
in the scope of the powers of the Government. The point 
here, is, that the contract is not within that scope. 

It was further contended, that it would follow that Congress 
and the people could not stop this war. This is too clear a 
non sequitur to require any reply. 

Whatever the name or nature of the arrangement with the 
principal, a sense of respect for Congress forces us to the con- 
clusion that this condition was implied to wit: that the sub- 
stitute should fill the place of his principal, and thus relieve 
him, till his own services became necessary, at which time he 
must take his own place, and the principal his. That hi* ser- 
vices have thus become necessaiw, is shown by the act of the 
27th of September, 1862. 

It is admitted, and is considered settled, that the principal 
does become liable when his minor substitute reaches the age 
of eighteen years. Yet, no consideration affects this case, 
which does not equally affect the other. In this, it is urged 
that the principal acted in view of the liability of his substi- 
tute, under the act of Congress, upon reaching the said age of 
eighteen. In the other, it may be equally well urged that he 
acted in view of the liability of his substitute, under the con- 
stitution, a yet higher law, upon an expression to that effect 
of the legislative will. How is it probable that the minor of 
sixteen years, would become liable? Was it not, under all 
the circumstances, equally probable, that he of thirty-six 
years, would also become liable ? What then, is the differ- 
ence between him of sixteen, and him of thirty-six? 

It is objected in this case, that it would be absurd to sup- 

JUNE TEEM, 1863. .57 

In the matter of Bryan. 

pose that Congress intended the President " to call out and 
place in the military service," those who had been already 
called out, and were already in service. Is the supposition 
any the less absurd when applied to the youth, who, upon 
reaching eighteen, is already in the service. It is apparent 
from sections one, three. and thirteen, of the act of April 16th, 
that Congress intended the language above quoted to apply 
to and embrace those alreadjr in the service — and that too, 
for a period longer than twelve months. The second sentence 
of the first section of the act, referring to the words above 
quoted, is as follows : " All of the persons aforesaid, who 
are now in the armies of the Confederacy, and whose term of 
service will expire before the end of the ivar" &c, showing 
that some were intended to be embraced whose term of ser- 
vice would not expire before the end of the war. If persons 
already in service are embraced in the act of April, they must 
be also in that of September, since their language is identical. 

It was objected further, that it could not have been intend- 
ed to send soldiers already in service to camps of instruction, 
and to use them for filling to the maximum other companies 
and regiments. But these provisions only apply to those who 
are to be enrolled, and those only are to be enrolled who have 
not been in service; see sections 4 and 6 of the act of April 13th, 
and the act of October 8th, 1862, establishing camps of in- 

It is objected further, that if any bounty or privilege had 
been given to those called out under this act, no one would 
suppose, for a moment, that the substitute of thirty-six would 
be entitled to them ? Why then suppose that the substitute 
of sixteen would be, on reaching eighteen % But, even admit- 
ting that they were embraced in the act, and had been so ex- 
pressly declared, they would not be entitled to the bounty 
or privilege, because not within the spirit of that portion of 
the act, giving them. 

It is argued that the regulation of the War Department di- 
recting soldiers in the service, over thirty -five years of age not to 
be discharged, is founded upon the view that they are not em- 


In the matter of Bryan. 

braced within the body of the act. This is an error. It wa& 
founded upon that portion of the act which relates to this spe- 
cial subject matter: "All persons * * * over the age 
of thirty-five, who are now enrolled, &c, in regiments, &c, 
hereafter to be re-organised, &c, shall be required " to remain 
in service for ninety days, implying that at the end of that 
time they are to be discharged ; act of' 16th of April, sec. 1. 
Paragraph 4, general orders for 1862, No. 37, dated May 19th, 
respecting substitutes, is as follows : " the exemption is valid 
only so long as the substitute is legalhv exempt;" that is, so 
long as he would, in his own place and right, have been 
exempt, had he not become a substitute, because he ceases to 
be exempt at once, as occupying the place of another. This 
order applies to the case before us, in which the discharge 
was given, in July, 1862, and is expressed to be in accordance 
with "the regulations on the subject." This regulation, then, 
is as much a part of the discharge as if it had been written 
out in full therein. An admission that the regulation being 
matter of legislation is void, would not vary this conclusion. 
The principle would be same as if the discharge had been for 
a specific time, say six months, and in neither case, could the 
party get more than was promised him, and than he agreed 
to receive. 

It is urged that the Secretary of War can only make regu- 
lations as to the time, manner, &c, of receiving substitutes— - 
that the regulation in question, is a matter of legislation, and, 
conflicting with that provision of the constitution which de- 
clares that the Legislative, Executive and Judicial Depart- 
ments shall be kept distinct, is void. But, suppose that Con- 
gress had, itself, regulated the time, manner, &c, of receiving 
substituies, would not that have been matter of legislation ? 
And would it be any the less so, because it was done through 
its agent, the Secretary of War ? In this view, all the regn- 
tions on the subject, are void, and so no one is entitled to dis- 
charge. But, that the Judicial, and Legislative, and Executive 
powers (of course) may be exercised by the same subordinate 
agents, see Thompson v. Floyd, 2 Jones' Rep. 313. 

JUNE TEEM, 1863. 59 

In the matter of Bryan. 

Upon any other construction than the one contended for 
by the Government, Congress, in passing the second act of 
conscription, legislated in the darlc, as to how many they were 
calling into service ; a conclusion forbidden by a proper re- 
spect for that enlightened body. 

Pearson, 0. J. Eor the reasons given by me in the mat- 
ter of Irvin and in the matter of Meroney, I am of opinion that 
the petitioner is entitled to exemption. In those cases, (see 
note*) I considered the subject fully, although I was not aid- 


The facts are, John N. Irvin, being liable as a conscript under the 
act of April 1862, offered in July 1862, one Gephart as his substitute; Gep- 
hart was 36 years of age, and in all respects a fit and sufficient substitute for 
the war, and was accepted by Maj. Mallett, commandant of conscripts, who 
thereupon gave Irvin an absolute discharge. 

The petitioner avers he is advised that the conscription acts are unconstitu- 
tional, but it is not necessary for the purpose of this case to decide the ques- 

It is admitted, that under the regulations of the War Department, Major 
Mallett had full authority to accept substitutes, and give discharges ; but it is 
insisted that Irvin's discharge was afterwards, by the action of Congress, ren- 
dered of no effect ; for the act of September, 1862, makes all persons be- 
tween the ages of 35 and 45, liable as conscripts; so Gephart became liable as 
a conscript, by reason whereof he was no longer a sufficient substitute ; and 
thus Irvin's discharge had no further effect. If one, who is at the time liable 
as a conscript, should be offered and accepted as a substitute, it may be con- 
ceded the discharge, obtained in that way, would be void, because no consid- 
eration is received by the government, and the officer exceeds his authority. 
So, if after the conscription act of April, one who is under 18 years of age, is 
offered and accepted as a substitute, it may be conceded that the discharge 
would only be of effect until the substitute arrives at the age of 18 ; for as it 
was known to the parties that the substitute himself would become liable at that 
date under a law then in force, it will be presumed that the contract and dis- 
charge were made in reference to that state of things, and after the substi- 
tute arrives at the age of 18, the consideration fails, and the officer had no 
authority to grant a discharge for a longer time. 

But, in our case, there was, at the time, no law in force under which it was 
known to the parties that the substitute would afterwards be himself liable as 
a conscript ; on the contrary, he was in all respects a fit and sufficient sub- 
stitute for the war, and was accepted as such, and an absolute discharge giv- 


In the matter of Bryan. 

ed by the argument of counsel. The subject has been fully 
argued before the Court, and I have reviewed ray opinion 
previously given, with an anxious wish to decide the question 

en ; so there was full consideration received by the government, and full au- 
thority on the part of the officer. The question is, does the subsequent ac- 
tion of Congress, to wit: the act of September, 1802, by its proper construc- 
tion and legal effect, repudiate and make void the contract and discharge? 

The construction of acts of Congress, so far as the rights of the citizens, as 
distinguished from the military regulations, are concerned, is matter for the 

Whether Congress has power to pass an act expressly making liable to 
conscription persons who have heretofore furnished substitutes, and received 
an absolute discharge, is a question not now presented, and one, which I 
trust, public necessity never will cause to be presented, as it would violate 
natural justice and shock the moral sense. 

In my opinion, the act of September, 1862, by its proper construction, does 
not embrace men who were before bound, as substitutes, to serve during the 
war. It is true, the act, in general words, gives the President power to call 
into military service all white men, residents, &c, between the ages of 35 
and 45 ; but this manifestly does not include men who are already in milita- 
ry service for the war, for this plain reason : there was no occasion to include 
them, they were bound before; and the true meaning and intent of the act is 
to increase the army by calling into service men who were not before liable. 
Suppose the act contained a provision giving a bounty of $500 to all men 
called into service under its operation, or providing that such conscripts should 
not be ordered out of their own respective States, would it be imagined that 
men who had previously volunteered for the war, or were substitutes for the 
war, would be entitled to the extra bounty, or to the special privilege of re- 
maining in their own States ? Sertainly not, because there was no need of 
legislation in order to make soldiers of them. 

A decent respect for our law-makers forbids the courts from adopting a 
construction which leads to the conclusion that it was the intention, by the use 
of general words, to include within the operation of the act, substitutes who 
were already bound for the war ; not for the purpose of affecting them, but 
for the indirect purpose of reaching parties who had furnished substitutes, and 
in that, was asserting a power, which is at least doubtful, and certainly 'in- 
volves repudiation, and a want of good faith. 

As the conscription act does not include substitutes, the conclusion that 
G-ephart is no longer sufficient as a substitute, and that Irvin's discharge is of 
no further effect, fails. 

It is considered by me that John K Irvin be forthwith discharged with 
liberty to go wheresoever he will. * 

JUNE TEEM, 186H. 61 

In the matter of Bryan. 

according to the proper construction of the act of Congress, 
The argument and my consultation with Judge Battle, con- 
firms my judgment as to the correctness of the views taken: 

It is further considered 3 ,that the costs of this proceeding, allowed by law, 
be paid by James Irviri, (the officer arresting the petitioner,) to be taxed by 
the clerk of the superior court of Rockingham county,' according to the stat- 
ute in such cases made and provided. 

The clerk will file the papers in this proceeding among the papers of his 
office. R. M. PEARSON, Ch, J. S. C. 

At Richmond Hill, July 9, 1863*, 


The facts of this case bring it within the decision in "The matter of Irvin." 
That decision is put on the ground that the Conscription Act of Sept., 1862, 
does not embrace substitutes ;. and so the questions growing out of the reg- 
ulations prescribed by the War Department, " where a substitute becomes 
subject to military service, the exemption of the principal shall expire," was 
not presented. 

It seems to me that any one accustomed to judicial investigation cannot 
read the act and fail to come to the conclusion that it does not embrace vol- 
unteers and substitutes who were already bound to serve for the war; a dif- 
ferent construction is excluded by the words used, and is inconsistent and re- 
pugnant to its provisions. 

The President is authorized ', to call out and place in military service all 
white men, &c." The words ,! call out 1 " and u place in military service" are 
not applicable to men who are already in the military service for the war; no 
legislation was necessary to* make soldiers of them. If only a part is called 
for, provision is made for taking " those who are between the age of thirty- 
five and any other age less than forty-five;" can this be applicable to volun- 
teers and substitutes ? It is further provided, that " those called out under 
this act, and the act to which it is an amendment, shall be first and immedi- 
ately ordered to fill to their maximum number the companies, battalions, &c. T 
from the respective States, &c, the surplus, &c." This supposes that the vol- 
unteers and substitutes composing the companies are to remain in the field,, 
and the companies and battalions are to be filled up by those who are order- 
ed into service under the* conscript act. 

Again, how can the regulation that all conscripts are to> be- sent to camps of 
instruction be applicable to volunteers and substitutes ? Are they to be ta- 
ken from the army and sent to camps of instruction ? Certainly not, be- 
cause they are not called out and placed in the military service under 
the conscription acts, but are bound for the war by the force of the original 
contracts of enlistment. 



In the matter of Bryan. 

by me in those cases, and I refer to the opinions filed by me 
as the ground of my present conclusion. 

I am informed that, soon after the conscription act of April, a regulation 
was made for the discharge of all volunteers for the war, who were over the 
age of thirty -five ; and under it many were discharged, but the regulation 
was revoked, the War Department becoming satisfied that the act by its true 
construction did not apply to men who were bound by the terms of enlist- 
ment to serve for the war. This is the same construction given by me to the 
act. Under it 'all volunteers and substitutes, whether over or under thirty- 
ty-five or forty-five, are to continue in service, because they are not embraced 
by the conscription acts. I can see no reason why this construction should 
not be followed to the further consequence, that as substitutes are not em^ 
braced by the conscription acts, and do not become subject to military ser* 
vice as conscripts, the fact necessary to the application of the regulations 
of the War Department, does not exist) consequently, the question that may 
grow out of that regulation, is not presented*. 

It is said the arrest of Meroney was ordered in disregard of the decision in 
the matter of Irvin, because the Secretary of War does not consider the con- 
struction given to the conscription act of September " a sound exposition of 
the act." The enquiry naturally suggests itself, who made the Secretary of 
War a judge ? He is not made so by the constitution — Congress has no pow- 
er to make him a judge, and has, by no act, signified an intention to do so.— ^ 
It is true, for the purpose of carrying acts of Congress into effect, the Secre- 
tary of War, in the first place, puts a construction on them, but his construc- 
tion must be subject to the Judiciary, otherwise, our form of government is 
■subverted — the constitutional provision by which the Legislative, Executive 
and Judicial departments of the government are separate and distinct, is vio- 
lated, and there is no check or control over the Executive. 

According to the view taken by me, it is not necessary, for the purpose of 
this case, to decide upon the legal effect of the regulations prescribed by the 
Secretary of War in regard to receiving substitutes, but as those regulations 
•are relied on as authorizing the arrest of the petitioner, it is proper for me to 
say that many objections, entitled to consideration, may be urged to the pow- 
- er of the Secretary of War, to make the regulations in question. The enact- 
ment under which it is assumed, that the power to make a regulation that 
"in all cases where a substitute becomes subject to military service, the dis- 
charge of the principal shall expire," comes within the scope of the power 
■confided by Congress, in the 8th section of the conscription act of April, 
1862, in these words : Persons not liable for duty may be received as sub- 
stitutes for those who are, under such regulations as may be prescribed tyj the 
•Secretary of V/ar." 

The obvious 'construction of this section seems to be— substitutes may be 

JUNE TERM, 1863. 63 

In the matter of Bryan. 

Battle, J. My opinion concurs with that of the Chief 
Justice, that a person liable to military service as a conscript 
under the act of April, 1862, and who, by virtue of the 9th 
section of that act, regularly procured a discharge by fur- 
nishing a proper substitute, cannot be again enrolled as a 
conscript under the amendatory act of September, 1862, 
though such substitute may have been, when received, be- 
tween the ages of thirty-five and forty-five years. 

Cases like the present, have been so often and so recently 
decided in the same way by different Judges, and the rea- 
sons upon which the decisions were founded, have become so 
generally known through the medium of the newspapers, that 
it is unnecessary for me to do more than to state briefly my 
conclusions on the subject. 

Persons between the ages of eighteen and thirty-five years, 

received on two conditions, one implied, to wit: The substitute must be an 
able bodied white man, fit for military service in the field ; the other ex- 
pressed, to wit : The substitute must be a person who is not liable to milita- 
ry duty under the existing law; the time, place and manner of receiving sub- 
stitutes, in which is included the mode of deciding whether he is an able bo- 
died white man not liable to duty, to be regulated by rules prescribed by the 
Secretary of War. 

If the regulation, in question, be confined to cases where the substitute be- 
ing under the age of 18, afterwards arrives at that age and becomes liable to 
military duty, it accords with the provision of the act. But, if it be extend- 
ed to cases where the substitute is not at the date of the contract of substitu- 
tution liable to duty, but is afterwards made liable by a subsequent act of 
Congress, it departs from, and goes beyond the provisions of the act by ad- 
ding a third condition, and the power to do so, may well be questioned; es- 
pecially, where the regulation as well as the act of Congress, which is sup- 
posed to give it application, are both subsequent to the contract of substitu- 
tion, and the discharge is absolute on its face. For illustration, suppose a 
regulation to be prescribed that in all cases where the substitute is killed or 
disabled, or where he deserts, the discharge shall expire, which stand on the 
same footing, with the regulation that the discharge shall expire if the sub- 
stitute is made liable to duty by a subsequent act of Congress, for all add a third 
condition to the two imposed by the act, and it may be urged against them 
that the power to add other conditions than those contained in the enact- 
ment is an act of legislation, which Congress has no right to delegate to a de- 
partment of the Executive branch of the Government, and of course an in- 


» In the matter of Bryan. 

who have furnished substitutes, are certainly not within the 
meaning of the Act of September, 1862, because that act is a 
call, in express terms, for persons between thirty-five and for- 
ty-five years of age. Volunteers and substitutes between the 
latter ages are not embraced, because, being already in the 
military service, they cannot, with any sort of propriety of lan- 
guage, be said to be called out and placed in that service, nor can 
it, for a moment, be believed that such volunteers and substitutes 
were intended to be taken from the companies and regiments 
of which they were already members and sent off to fill up 
other " companies, battallions, squadrons and regiments." 
Not being liable to be called into service under this act, the 
substitutes cannot be taken aw T ay from their principals by 
force of the act, so as to leave the latter liable again under 
the act of April, 1862, as having no person substituted and 
serving in their stead. If such principals can be made liable, 
then, it must be on account of some condition, either express- 
ed or implied, contained in the discharges. The only pre- 
tention to do so, can only be inferred from plain and direct words, and the' 
words, in this instance, are satisfied by the construction stated above. 

The same question of construction is presented in the matter of Iiuie, from 
Cabarrus county, under a clause in the exemption act, which exempts all 
persons who shall be held unfit for military service in the field under rules 
io he prescribed by the Secretary of War, where the power is confined to 
making rules to ascertain whether the person is or is not fit for military ser- 
vice in the field, and it is decided that the act does not confer power to pre- 
scribe a rule under which a citizen may be taken as a conscript, although 
held unfit for military service in the field, on the ground, that he may answer 
some purpose in the hospitals, &c. These instances tend to show the wis- 
dom of the Constitution in hot confiding legislative, judicial and executive- 
powers to any one department. 

I am of opinion, that the petitioner is entitled to exemption. 

Therefore, it is considered by me, that P. P. Meroney, be forthwith dis- 
charged, with leave to go wherever he will. It is further considered, that 
the costs of this proceeding, allowed by law, to be taxed by the clerk of the 
superior court of Rowan county, according to the act of the General Assem- 
bly, be paid by Jesse McLean, (the enrolling officer.) 

The clerk will file the papers in this proceeding among the papers in his 
offlce and give copies. R. M. PEARSON, Ch. J, S. C. 

At Richmond Hill, July 4dh, 1863. 

JUNE TERM, 1863. 65 

In the matter of Bryan, 

tense for an express condition is a recital in their discharges, 
that they are given under the orders and regulations of the 
War Department. The regulations of that department, made 
at the time when the discharges were granted, were, that the 
substitute should not be liable to military duty, aitd should 
be found, upon an examination by a surgeon or assistant sur- 
geon of the army, to be sound, and in all respects fit for mili- 
tary service; see Gneral Order, J\ T o. 2.9. The Secretary of 
War had no power afterwards to make an order to have a re- 
trospective operation to affect rights already attached. The 
Legislature may pass retrospective laws,, but it is veiy certain 
that no other department of the government can. I con- 
clude, then, that the discharges were not subject to any ex- 
press condition of the kind, contended' for. 

Neither can any such condition be implied.. If any can be 
implied, it can only be upon the ground that the conditional 
event wa^ in the contemplation of the parties at the time the 
discharge was given. When the act of April, 1802, gave to 
conscripts the right to employ, as substitutes, persons not lia- 
ble under that act to. perform military duty, eo-uld it have been 
contemplated by tlte parties, that the substitutes were to be 
taken away by another act of -Congress, to be passed in a few 
months afterwards I Such a contingency was not so proba- 
ble as that the substitute might desert, or die of disease, or be 
killed in battle, and yet no person contends that these contin- 
gencies should be regarded as conditions implied in the dis- 
charges. The truth is, it was a casus omissus, for which 
Congress neglected to provide, and it is too late for the War 
Department to attempt to remedy the mischief, by assuming 
to legislate under the name of regulations. 

Whether Congress lias the power to apply a remedy, and 
whether it is expedient for it to exercise thai- power, if it' has 
it, is a ijuestion which it is not my province to decide. I have 
discharged the only duty which devolved on me in this case, 
when 1 say, 1 think that die petitioner is entitled to his dis- 

Per Curiam, Petitioner discharged with costs against the 
officer seizing him. 


In the matter of Guyer. 

In the matter of SOLOMON N. GUYER, a blacksmith. 

Soldiers who had been " placed in' the military service of the Confederate 
States in the field," under the conscription act of April, 1862, and were so 
at the time of the passage of the exemption act of 11th Oct. 1862, were 
held not to be entitled to exemption under that apt. 

But where a blacksmith, after being so enrolled was, at the time of the passage 
of the exemption act, not so placed in service in the field, but was detailed 
to work on a government contract, and did so work at his trade, at accus- 
tomed wages, not having received any bounty, pay, rations or clothing, up 
to that time, it was held that he was entitled to exemption. 

The petitioner was a blacksmith, and had worked at the 
trade for ten years. In May, 1862, he quitted his shop and went 
to work in the armory of one B. Weathersbie, who was en- 
gaged in working for the State of North Carolina. On the 
8th of July, he was enrolled as a conscript, and shortly there- 
after, was detailed at Weathersbie's request to work in his 
armory, where he remained until the contract was abandoned 
in the latter part of March, 1863. From the last of March 
to 19th of May, the petitioner was in the service of Capt. 
Coffin, in command of the armory, and was working there at 
his trade of a blacksmith ; whence he was directed by Coffin 
to report to Lieut. Anderson, enrolling officer for the 6th Con- 
gressional District of North Carolina, which he did as soon 
as he could find him, to wit : on 22d May, 1863. He then 
filed his affidavits for exemption, and the proofs necessary to 
sustain his application, and insisted on his discharge, but this 
was refused, and he was sent to the camp of instruction near 
Raleigh, where he was detained, and is still detained by the 
order of Col. Peter Mallett, commander of the said camp of 
instruction. Up to the time of the arrival of petitioner at the 
camp, he had never received any bounty, pay, rations or 
clothing : but since then, he received a few articles of cloth- 
ing, (which are specified in the proofs,) and his daily subsist- 
ence. For these causesj he applied for a writ of habeas cor- 

• JUNE TERM, 1863. 67 

In the matter of Guyer. 

pus to this Court, and on its return, with the cause of his de- 
tention, the cause was argued by 

Gilmer and Scott, for the petitioner. 

Strona, Dist Atto. of Confederate States, and Bragg, contra, 

Pearson, C. J. For the reasons given by me in my opin- 
ion, In the matter of Nicholson, the Court is of opinion that 
the exemption act of October 11th, 1862, applies as well to 
the conscription act of April, 1862, as to the conscription act 
of September, 1862, and the reasoning in Nicholson's case is 
now referred to as the ground of the decision of the Court on 
that point.* 


The facts are : Nicholson is thirty-three years of age, is a miller and mill- 
wright—skilled in both trades. He was enrolled as a conscript 8th of July, 
and was ordered into service 15th of July, 1862. Between the 8th and 15th 
of July, he applied to the commandant of conscripts for a special exemption 
as a miller ; this was refused; he, nevertheless, failed to report, and continued 
at his trade as a miller, as he had habitually done for many years before. In 
August, 1862, he went into the armory of Lamb & Co., expecting to be de- 
tailed, but left before the detail was made, and set into work for one Ship- 
man, as a mill-wright, where he worked until the 1st January, 1863, when 
he went to Virginia, and set to work as a mill-wright for one Lamb, where 
he remained actually employed at his trade until March, when, coming into 
this State, on a visit to his family, he was arrested as a recusant conscript. 
He has made the affidavit as required by the exemption act. 

In the matter of Mills, a shoemaker, and Angel, a wagonmaker, I deci- 
ded that the exemption act, October 11, 1862, applied as well to the con- 
scription act of April, as to the conscription act of September. I see no rea- 
son to change my opinion. The act adds to the list of exemptions contained 
in the exemption act of April — uses general words applicable to both con- 
scription acts, " all shoemakers, tanner^" &c. — makes no distinction be- 
tween persons under or over thirty-five, and repeals the former exemption 
act, showing obviously that the intention was in reference to the conscription 
act of April, to put the last exemption act in place of the act repealed, and 
make one exemption act answer for both conscription acts. If this be not 
so, there are no exemptions between the ages of eighteen and thirty- five, and 
Governors of the States, Judges, members of the Legislature, &c, under the 
age of thirty-five, are liable as conscripts ; nay, all persons, although " unfit 


In the matter of Guyer. 

In regard to the proper construction of ihe exemption act, 
in its application to tlie conscription act of September, 1862, 
the Court is not. called on to express an opinion, as there is no 
case before it, which involves the question. 

In regard to the proper -construction of the exemption act, 
in its application to the conscription act of April, 1862, the 
Court is of opinion thai no person is embraced by Jts provi- 
sions so as to be entitled to exemption as a shoemaker,, tanner, 
&c., who was, at the date of its passage, in the army as a sol- 

for military service, by reason of bodily oriental infirmity," are liable as 
conscripts, if under the age of thirty-five. Such a construction is inadmissa- 
ble. It was said by Mr. Scott, on the argument, "This difficulty is met by 
the power given to the President to make special exemptions." But it could 
not have been the intention to make Governors, Judges and members of the 
Legislature dependent upon the pleasure of the President; the object was to 
entitle them to exemption, by law, and -not by favor. 

It was also said, if the act applies to the conscription act of April, it must 
have a retro-active effect, aud its construction will present many difficulties. 
That is true; but when the clear intention of the law-makers that the one 
act should apply to the other, it becomes the duty of the Judges to adopt 
such a construction as will make them fit in the best way they can be put 

In the matter of Mills and Angel, it was not necessary to fix on the time 
when the act requires the party to be actually employed at his trade, for they 
were not ordered into service until after its passage, and were, without de- 
fault, actually employed at their trades, both at the passage of the act, and 
when ordered into service, and taking either date as " the time" were enti- 
tled to exemption. 

In this case, the point is directly presented. If " the time" be when the 
party is ordered into service, then Nicholson was entitled to exemption, and 
his subsequent conduct in keeping out of the way, and going to Virginia to 
avoid an arrest, does not prejudice his right, it being induced by the unau- 
thorized act of Government officers in attempting to arrest him, although the 
more commendable course would have been to insist openly on his right. If 
however, " the time" be when the exemption act passed, then he was liable 
as a conscript, and although actually employed at his trade, cannot claim for 
that reason, to stand on higher ground, in this respect, than if he had been 
in the army, because of the maxim, "no man shall take advantage of his own 

The clause, under consideration, does not (except indefinitely, in the pro- 
viso,) refer to the time when the person claiming to be exempted, must be 

JUNE TEUM, 1863. 69 

la- the matter of Guyer. 

dier ■ that is, who had, prior to the passage of the act, been 
yplaccd in the military service of the Confederate States in the 
field. But that all '-shoemakers, tanners, &c, under the age 
of thirty-five years, who had not been, prior to the passage of 
the act " placed in the military service of the Confederate 
States in the field," are embraced by its provisions, and are 
entitled to exemption, whether the fact of the party's not hav- 
ing been placed in military service in the field, be owing to 
his not having arrived at the age of eighteen years, or to his 

actually employed at his trade. It makes no exception of persons then in 
service, or who had, been ordered into service, and puts the stress on the fact 
of actual employment. It is in these words : " A il shoemakers, tanners, &c, 
skilled and actually employed in the said trades, habitually engaged in work- 
ing for the public, and whilst so actually employed, provided, said persons 
shall make oath, in writing, that they are so skilled and actually employed 
at the time, as their regular vocation, in one of the above trades, which affi- 
davit, shall only be prima facie evidence of the facts therein stated." 

In reference to the conscription act of September, it is clear, " the time" is 
when the party is ordered into service ; that being the time when the affida- 
vit is called for, to enable him to claim exemption. But in reference to the 
conscription act of April, it is not so easy to fix the time. The difficulty arises 
from the fact, ijint the exemption act i> applicable to ooib conscription acts- 
one of which, was passed six months before the other, and after it had, in a great 
measure, been carried into effect. In my opinion, " the time" is the same in 
reference to the act of April, as in reference to the act of September, to wit, 
when the party is ordered into service. Had the time <tf the passage of the 
act been intended, it is reasonable to presume, that the words would have 
"been "now actually employed," as in the clause just preceding, in respect to 
physicians, " at this time." The policy of exempting shoemakers, &a., being 
cot to favor the individual, but to subserve the public interest, which was 
greatly prejudiced by taking tradesmen from their Occupations — it was im- 
material whether the tradesman was under or over the age of 33 years. 

The material inquiry is, was he Vorking for the public at the time, which 
naturally refers to the time when he was called off from his trade — taking 
the distinction between volunteers, who, of their own accord had quit their 
trades, and conscripts, who had been laken from their trades by act of law 
and should be considered in reference to the intended exemption as still at 
their trades. This construction is called for by the rule, " the same words in 
the same statute, ought to have ihe same meaning," and as in reference to 
the act of September, the meaning certainly is, when the party is ordered 
into service, the same words cannot have a different meaning in reference 



In the matter of Guyer. 

i 1__ ! 

not being in the State, or to his not having been enrolled by 
an oversight or neglect of duty on the part of the enrolling 
officer, without default on the part of the party himself, (which 
is one of the cases before us,) or if enrolled, that he was not 
ordered into service by similar laches of the officer, (which is 
another case before us,) or to the fact that when enrolled, the 
party was detailed to work as a shoemaker, or blacksmith, or 
wagonmaker, in the employment of a government contrac- 
tor, the person so detailed, receiving no bounty } or pay, or 

to the act of April. Had it not been the intention to include all shoemakers, 
&c, without regard to age, this result would have been avoided, by adding 
the words, " provided no shoemaker, &c, shall be exempted, who is now in 
service, or has been ordered into service." So, the question is narrowed to 
this : Can the Courts add these words to the act ? I see no ground on which 
the omission, if it be one, can be supplied by construction. It was urged by 
Mr. Scott, that the public interest required as many soldiers as could be rais- 
ed, therefore, an intention to exempt any, who were already in service, or 
who ought to have been in service, can only be infered from plain and direct 
words. This was met by Mr. Gilmer with the suggestion, that the public 
interest required that tradesmen should not be taken from their vocations, 
and that those who have been taken off by act of law, should be allowed to 
return; as it" was seen the public interest had been prejudiced, and it was a 
matter of difficulty for the people to get a pair of shoes, or have a plough 
sharpened, &c., and that the benefit of a matter of doubt, if there be one, 
arising from a want of precision in an act of Congress, should be given to the 
citizens, rather tharj to the Government. 

Giving to these suggestions, proper consideration, the inquiry, whether the 
intention was to consult the public interest in the army or at home, can only 
be answered by the words used. The clause, under consideration, does, " in 
plain and direct words," exempt all shoemakers, &c, and does not except 
those who are in the army, or ought to have been in the army, at the pas- 
sage of the act, and the indefinite words in the proviso, "actually employed 
at the time," cannot, by any recognized rale of construction, make the ex- 

And it does, " in plain and direct words," repeal the exemption act of 
April. This fact has an important bearing on the question of construction ; 
for, if it was not the intention that the additional exemptions should apply to 
persons under thirty-five, why repeal that act ? And if such was the intention, 
the only way in which it can be carried out, and the exemption act be made 
to fit the conscription act of April (with a few exceptionable cases like Mills and 

JUNE TEEM, 1863. 71 

In the matter of Guyer. 

- — — - : ! — ______ > 

rations, or clothing, as a soldier, but receiving only his accus- 
tomed wages as a journeyman tradesman, of which kind is 
the case now under consideration, and several other cases be- 
fore us, or whether they had been allowed to remain at home 
" as a reserve," receiving no pay as soldiers, under the provi- 
sions of the sixth section of the conscription act of April. — > 
In other words, we draw the dividing line between those who 
had become soldiers, and those who had not left the walks of 
private life, and were actually employed in their respective 
trades at the date of the passage of the exemption act. 

The task of making an application of the exemption act to 
a conscription act, which was passed six months before, and 
had, in a great measure, been carried into effect, (as I say in 
Nicholson's case,) is a very difficult one. It is hard to make 
the one fit the other. The Court has been aided by very full 
and able arguments at the bar, and after weighing the sug- 
gestions offered pro and con, and taking into consideration the 
act of 9th of October, 1862, (two days before the exemption 
act,) which authorizes the President to detail from the army, 
persons skilled as shoemakers, (not exceeding two thousand,) 
to make shoes for the soldiers, to which our attention Was for 

Angel) is to give it relation to the time when the party was ordered into service 
and taken from his trade. 

Whether shoemakers, &c., who were in service as conscripts when the 
act passed, can now claim exemption, or would be taken to have waived the 
right, by acquiescence, in afterwards receiving pay, &c, is not the question 
now presented. 

Nicholson certainly has done no act that can amount to a waiver of his 
right; he has not received the, State bounty — has received no pay, and has 
done nothing from which acquiescence can be applied. 

It is considered by me that Nicholson is entitled to exemption, and that he 
be forthwith discharged, with leave to go wherever he will. It is also con- 
sidered, that Lieutenant Anderson (the enrolling officer) pay the costs of this 
proceeding, allowed by law, to be taxed by the clerk of the superior court of 
Guilford county, according to the statute in such a case made and provided. 

The clerk will file the papers in this proceeding among the papers in his 
office, and give copies to Nicholson and Lieutenant Anderson. 

R. M. PEARSON, Ch. J. S. C. 

At Richmond Hill, May 4th, 1863. 


In the matter of Giiyer, 
_ 1 

the first time called by Mr. Bragg, and of which neither mem- 
ber of the Court was before apprised, we have come to the 
conclusion stated above. 

On the one hand, a construction confining the operation of 
the exemption act to the few persons who may have arrived 
at the age of eighteen years, after the passage of the conscrip- 
tion act, and the few exceptionable cases where- persons under 
thirty-five years of age had, by the omissions of the Confed- 
erate officers not been enrolled, would' certainly be restrict- 
ing it too much; on the other, to extend its operation to all 
shoemakers, tanners, &c», who were in the army, would seem 
to carry it too far, and the act referred to (9th October,) tak- 
ing men out of the army, by detail, to make shoes for sol- 
diers, (restricting the number to two thousand,) is inconsist- 
tent with the fact, that two days thereafter, it was the inten- 
tion to take " all shoemakers, tanners, &c, from the army, 
and send them home to work at their trades. So, that broad 
construction is excluded. The same act furnishes proof that 
the members of Congress were aware of the fact that the 
number of artizans, working at their respective occupations, 
was not enough to supply the necessities of the public. From 
this we arrive at the conclusion, without going into a particu- 
lar examination of the words used, that all soldiers were to 
continue in service, and all who were at home, actually em- 
ployed at their trades, should remain there, and be exempted 
as long as they should continue to work at their trades, at 
prices not exceeding seventy-five per cent, on the cost of pro- 

This construction varies in some measure, from that given 
by me to the act in the opinion delivered In the matter of 
Nicholson ; but the difference does not affect any case now be- 
fore us; the distinction being that in my opinion then, soldiers 
were embraced by the exemption act, but those who failed to 
make their election, and afterwards received pay, rations, 
clothing, &c, were to be considered as having waived their 
right to exemption ; whereas, in the opinion of the Court, in 
which I fully concur, soldiers or persons who had been placed 

JUNE TEEM, 1863. 73 

In the -matter of Grantham. 

in the military service in the field, were not embraced by the 
exemption act. Its practical application to the only case of 
the kind before us, {In the matter of Dixon,) results in the 
same way. He was under thirty-five, was in the army as a 
conscript when the exemption act passed — had received the 
bounty, pay, &c, of a soldier afterwards, up to November, 
1862, and was not entitled to exemption ; whether on the 
ground that the exemption act did not embrace his case, or if 
it did, that he had waived the right, makes no difference, as 
in either view, he was to be remanded. 

Pee Curiam, Let the petitioner be discharged, and recov- 
his costs. 

In the matter of BAKFIELD GRANTHAM, a shoemaker. 

The conscription act requires that the trade on which the claim of a mechanic 
to exemption is based, shall be his regular occupation and employment, and 
not that at which he may work occasionally and at odd times. 

The facts are stated in the opinion of his Honor. 

Everett, for the petitioner. 
Strong and Bragg, contra. 

Battle, J. The petitioner claims to be exempt from mili- 
tary service as a conscript, upon the ground that he was a 
shoemaker. The testimony offered in support of his claim, 
shows that for some years past, he had a small farm on which 
he worked during the spring and summer, but during fall 
and winter he made shoes for his own family, and for some of 
his neighbors. In August, 1802, lie commenced, and contin- 
ued to do more work in the business of making shoes than he 
had been previously accustomed to do, though it does not ap- 
pear that he devoted himself exclusively to that occupation. 


In the matter of Dollahite. 

This proof is not, in our opinion, sufficient to establish the 
right to the exemption for which the party contends. The 
conscription act requires that the trade upon which the claim 
of a mechanic to exemption is based, shall be his regular oc- 
cupation and employment, and not that at which he may work 
occasionally and at odd times. A mechanic is excused, from 
military service, not for his own ease, and as a favor to him- 
sepf, but for the benefit of the public, whom, it is supposed, 
that he can serve better by working at his trade, than in any 
other way. He must stand towards the community upon the 
same footing that a common carrier does, so that all persons 
who may have occasion to claim the aid of his services, may, 
at all seasonable times, be able to obtain it. 

The petitioner has not shown himself to be within the lim- 
its of this rule, and his application for a discharge is, there- 
fore, rejected. 

Pek Cukiam, Application rejected. 

In the matter of MOORE W. DOLLAHITE, a School Teacher. 

A school master whose occupation had been suspended for twelve or eighteen 
months, within the term required for his previous pursuit of the business, 
is not entitled to an exemption under the act of Congress, passed on the 
11th of October, 1862. 

This was a petition for a habeas corpus by the plaintiff, who 
is a citizen of Person county. The facts of the case appear 
from the opinion of the Court. 

Winstead, for the petitioner. 

Strong, Dist. Atto. of Con. States and Bragg, contra. 

Battle, J. The petitioner claims to be exempted from 
military service, in the army of the Confederate States, upon 

JUNE TEEM, 1863. ?5 

In the matter of Dollahite. 

the ground of being the teacher of a school. The clause of 
the exemption act, which relates to his case, is as follows : — 
" all presidents and teachers of colleges, academies, schools, 
and theological seminaries, who have been regularly engaged 
as such, for two years previous to the passage of this act," 
which was the 11th October, 1862. He states that he had 
been engaged as a teacher for ten or twelve years before the 
passage of the conscript act, but that his school had been sus-^ 
pended for twelve or eighteen months, in consequence of the 
troubled condition of the country. He states further, that at 
the time of his enrolment, he was again engaged in teaching 
a school. 

It seems from the papers which accompany the petition, 
that the case of the petitioner had been referred by the com- 
mandant of the camp of instruction, to the Bureau of Con- 
scription at Eichmond, when the following decision was pro- 
nounced : "Exemption declined. The object of the law of 
October 11th, 1862, in defining certain classes to be exempt 
from the operation of the conscript acts, was not to attach 
privileges to those classes, but to abstain from breaking up the 
existing civil and industrial organizations of the country. — 
Exemptions, therefore, have reference to the status at the date 
of the passage of the act. ]STo antecedent or subsequent com- 
ing within the classes enumerated, can entitle to an exemp- 
tion. In the case of school teachers and physicians, the pro- 
fession must not only have been in existence on October 11th, 
1862, but also the pursuit of it, both then and for a specified 
time previous." We concur in the above decision, and think 
that the reasoning upon which it is founded, fully sustains it. 
As to the time when the status of some of the enumerated 
classes is to be fixed, we may differ in opinion from the dis- 
tinguished head of the Bureau of Conscription, but as to 
school teachers and physicians, the act is express, and leaves 
no room for doubt. 
Pek Cukiam, The petitioner must be remanded back to 
the custody from which he was taken, and 
must pay the costs of this proceeding. 


"In the matter of Bitter. 

In the matter of ELIAS RITTER. 

A person who had been drafted, and who had put in a substitute that was ac- 
cepted by the officer appointed to act on that business, was held not liable 
to be conscripted under the act of September, 1862. > 

The circular of the War Department, (luted 20th October, 1861. allowing sub- 
stitutes to be received after the companies were formed and actually in the 
service, applies, by a liberal construction, to companies while in the condi- 
tion of being formed and organized or reuruited, and when a substitute is 
received under the latter circumstances, several of the formalities for ob- 
taining a discharge, become immaterial. 

Petition for a Habeas Corpus, before the Supreme Court, 
Elias Eitter, the petitioner, on the call on the State of North 
Carolina for troops, was drafted on 25th of February, 1862, 
to go into actual service, fie then hired a substitute over 
eighteen years of age, by the name of Medlin, for three years 
or the year, who was received by Ool. Eichardson, an officer 
authorised by the government to receive substitutes. Medlin 
entered into the service for the war, and the petitioner receiv- 
ed his discharge from Col. Eichardson. Under the conscrip- 
tion act of April, 1862, Eittcr was nut called on, (being over 
thirty-five,) but under that of September, 1862, (being under 
45) he was enrolled and ordered into the camp, near Ealeigh, 
and was held there against his will by the officer in command. 

It was insisted, on the argument, that as no company was 
organised when the substitute was offered' and received, that 
he did not, and could not, comply with the requisitions of the 
department in furnishing of substitutes. 

The regulations of the War •Department, alluded to above, 
are as follows : 

" Wak Department,. Eichmond, Oct. 20, 1861. 

"1. When any non-commissioned officer or soldier of the 
volunteer service desires to procure a substitute, lie shall first 
obtain the written consent of the Captain of his company and 
of the commander of his regiment or corps, a duplicate of 
which lie shall forward to the substitute. 

" 2. The substitute shall then obtain from some surgeon and 
some commissioned officer in the service of the Confederate 
States, a certificate of his fitness for service and of his having 

JUNE TERM, 1863. 77 

In the matter of Bitter. 

been mustered into the service of the Confederate States for 
the war, no matter what the term of the service of his 
principalmay be, and these several certificates shall serve as 
a passport to the holder to join the regiment or corps to which 
his principal belongs — he paying the expenses of his own 

" 3. When a non-commissioned officer or soldier is entitled 
to discharge, by reason of a substitute, the Captain of his 
company and the commander of his regiment or corps shall 
give him a certificate to that effect, stating that the substitute 
furnished, according to the regulations, is actually on duty 
with the regiment or corps ; that the holder of the certificate 
is in no wise indebted to the Confederate States, and that he 
is not entitled to transportation at the expense of the govern- 
ment, and this certificate shall serve the holder as a passport 
to leave the camp and travel to his home. 

" 4. If it shall be found that a non-commissioned officer or 
soldier, discharged by reason of a substinte, is indebted to the 
government, the commander of the regiment or corps giving 
the discharge, will be held accountable for the same, and any 
back pay due said non-commissioned officer or soldier, shall 
be drawn and receipted for by the substitute at the next pay 
day. • 

" 5. Commanders of regiments or corps shall, under no cir- 
cumstances, permit substitutions in their commands to ex- 
ceed one per month in each company, and all such cases shall 
be noted in the following morning report of the regiment or 
corps, in which they occur, and in the next muster roll and 
monthly return." 

McDonald, for the petitioner. 
Strong and Bragg, contra. 

Peaeson, C. J. We are of opinion that the circular, from 
the war department, dated October 20, 1861, by which sub- 
stitutes were allowed to be received after the companies were 
formed and actually in service, applies, by a liberal construe- 


In the matter of Bitter. 

tion, to the companies while in the act of being formed or or- 
ganized, or recruited, without the necessity of the details, 
which were made material by the fact that when the party 
was in service, and wished to put in a substitute, many cir- 
cumstances had to be attended to, in order to prevent confu- 
sion — as the back pay or indebtedness of the principal and 
mode of getting home, and then to allow too many at a time, 
might disorganize the company ; but when the companies 
were in the act of being organised, no considerations of that 
nature were presented, and the purpose was fully answered, 
by putting in an able bodied man for the war, and if proof can 
be made that these essentials were complied with, the object 
is fully answered when the substitute went into the service, 
and is still there, or has been killed, or disabled. 

Per Curiam, * Petitioner discharged.